Claim was dismissed for lack of service.
|Claimant short name:||SANTIAGO|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :||The caption is amended sua sponte to reflect the only properly name defendant.|
|Judge:||FRANCIS T. COLLINS|
|Claimant's attorney:||Jeremy Santiago, 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 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 February 3, 2012 alleges the Department of Corrections and Community Supervision failed to provide the claimant appropriate medical treatment from November 27, 2011 to December 3, 2011 while he was incarcerated at Great Meadow 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 it is the usual business practice of the Attorney General's Office to record the receipt of claims in its electronic record-keeping system, and that her search of this system failed to reflect that a claim was served on the Office of the Attorney General in this matter. 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: