New York State Court of Claims

New York State Court of Claims
ROMANO v. THE STATE OF NEW YORK, # 2017-015-250, Claim No. 123742, Motion No. M-90603

Synopsis

Claim was dismissed for failure to serve the claim on the Office of the Attorney General.

Case information

UID: 2017-015-250
Claimant(s): ANTHONY ROMANO 00A5352
Claimant short name: ROMANO
Footnote (claimant name) :
Defendant(s): THE STATE OF NEW YORK
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 123742
Motion number(s): M-90603
Cross-motion number(s):
Judge: FRANCIS T. COLLINS
Claimant's attorney: No Appearance
Defendant's attorney: Honorable Eric T. Schneiderman, Attorney General
By: Paul F. Cagino, Esquire
Assistant Attorney General
Third-party defendant's attorney:
Signature date: July 11, 2017
City: Saratoga Springs
Comments:
Official citation:
Appellate results:
See also (multicaptioned case)

Decision

Defendant moves to dismiss the claim pursuant to CPLR 3211 (a) (2) on the ground the claim was not served upon the Attorney General as required by Court of Claims Act 11 (a) (i).

The claim filed on January 3, 2014 seeks damages arising from the conduct of four correction officers in "destroying, disposing of, tampering with property" on November 17, 2013 at Great Meadow Correctional Facility.

Defendant contends in support of its dismissal motion that although a notice of intention to file a claim was received by certified mail, return receipt requested, on December 26, 2013, there is no record of service of the claim. Defendant's contention is supported by both defense counsel's affirmation and the affidavit of Debra L. Mantell, Legal Assistant II in the Albany Office of the Attorney General. Defense counsel indicates based upon his personal review of the file maintained by the Office of the Attorney General that there is no record of service of a claim in this matter. Ms. Mantell states in her affidavit that she searched the electronic database maintained by the Attorney General's Office and found no record that the instant claim was served upon the Attorney General.

The State's waiver of immunity under section 8 of the Court of Claims Act is contingent upon claimant's compliance with the specific conditions to suit set forth in article II of the Court of Claims Act (Lepkowski v State of New York, 1 NY3d 201, 206 [2003]). Among these conditions is the service requirement contained in Court of Claims Act 11 (a) (i) which provides, in relevant part, that a copy of the claim "shall be served personally or by certified mail, return receipt requested, upon the attorney general within the times hereinbefore provided for filing with the clerk of the court." The failure to serve a claim upon the Attorney General is a non-waivable jurisdictional defect which divests this Court of subject matter jurisdiction (Finnerty v New York State Thruway Auth., 75 NY2d 721, 723 [1989]; Caci v State of New York, 107 AD3d 1121 [3d Dept 2013]; Johnson v New York State, 71 AD3d 1355, 1355 [3d Dept 2010], lv denied 15 NY3d 703 [2010]; cf. Court of Claims Act 11 [c] [ii]).

Defendant established in support of its motion that the claim was not served upon the Attorney General as required by Court of Claims Act 11 (a) (i), and the only affidavit of service filed in the Office of the Chief Clerk of the Court of Claims indicates that an unspecified document was sent to the Court of Claims on December 19, 2013. There being no evidence that the claim was served on the Attorney General, dismissal of the claim is required.

Accordingly, defendant's motion is granted, and the claim is dismissed.

July 11, 2017

Saratoga Springs, New York

FRANCIS T. COLLINS

Judge of the Court of Claims

The Court considered the following papers:

  1. Notice of motion dated June 15, 2017;
  2. Affirmation of Paul F. Cagino dated June 15, 2017, with exhibits A-B;
  3. Affidavit of service by mail attached to filed claim sworn to December 19, 2013.