Claim dismissed, no service upon defendant.
|Claimant short name:||HAMILTON|
|Footnote (claimant name) :|
|Defendant(s):||NY STATE DEPT. OF CORRECTIONS|
|Footnote (defendant name) :|
|Claimant's attorney:||RASHAAD HAMILTON
|Defendant's attorney:||HON. ERIC T. SCHNEIDERMAN
Attorney General for the State of New York
By: Paul F. Cagino, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||January 8, 2018|
|See also (multicaptioned case)|
The following papers were read and considered by the Court on the State's unopposed motion to dismiss:
Notice of Motion, Attorney's Supporting Affirmation and Exhibit
The State moves to dismiss the claim on the ground that the State was never served with a copy of the claim.
Claimant filed Claim No. 125840 with the Court on March 23, 2015 along with an affidavit of service. Claimant's affidavit of service, sworn to on March 19, 2015, affirms service by certified mail, return receipt requested on February 25, 2015; however the claim itself was not signed and verified until March 19, 2015. Additionally, the affidavit does not identify the entity or individual served. Accordingly, claimant's affidavit of service is facially defective and without any probative value.
In support of its motion to dismiss, the State submits the affidavit sworn to on November 7, 2017 by Debra L. Mantell, a Legal Assistant II in the office of the Attorney General (State's Ex. B). Mantell affirmed that she searched the State's digital case management system and did not find any record of receipt of either a notice of intention to file a claim or a copy of the claim (State's Ex. A).
Court of Claims Act § 11 (a) (i) requires that a claim be served on the attorney general either personally or by certified mail, return receipt requested (see Trimble v State of New York, 142 AD3d 1256 [3d Dept 2016]). This requirement is jurisdictional in nature and the failure to comply with it mandates dismissal of the claim (see Encarnacion v State of New York, 133 AD3d 1049, 1050 [3d Dept 2015]).
The Court finds that the State has offered sufficient proof to support its motion to establish that the claim was not served upon defendant. Claimant has not submitted any opposition to the motion and, as noted above, the affidavit of service is facially defective and without any probative value.
The State's motion to dismiss is GRANTED and the claim is dismissed.
January 8, 2018
White Plains, New York
Judge of the Court of Claims