Defendant's dismissal motion was granted for lack of service of the claim.
|Claimant(s):||QUINCEY FRYE 12 B 3558|
|Claimant short name:||FRYE|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :||The caption is amended sua sponte to reflect the only properly named defendant.|
|Judge:||FRANCIS T. COLLINS|
|Claimant's attorney:||Quincey Frye, Pro Se
|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 26, 2017|
|See also (multicaptioned case)|
Defendant moves for dismissal of 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 October 11, 2013 seeks damages for the loss of certain personal property during the course of claimant's confinement at Mt. McGregor Correctional Facility.
Defendant contends in support of its dismissal motion that the claim was not served upon the Office of the Attorney General. 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 that based upon his personal review of the file maintained by the Attorney General there is no record of service of a claim in this matter. Ms. Mantell states in her affidavit that her search of the digital case management database maintained by the Attorney General's Office disclosed no record that the Attorney General's office has been served with a copy of the claim.
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 ). 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 ; 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 ; 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). There being no opposition to the motion, and in the absence of any evidence establishing 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 26, 2017
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims
The Court considered the following papers: