Claim was dismissed for lack of service.
|Claimant(s):||MICHAEL J. MONROE, 16A2258|
|Claimant short name:||MONROE|
|Footnote (claimant name) :|
|Defendant(s):||STATE OF NEW YORK|
|Footnote (defendant name) :||The caption has been amended sua sponte to reflect the only properly named defendant.|
|Judge:||FRANCIS T. COLLINS|
|Claimant's attorney:||Michael J. Monroe, Pro Se|
|Defendant's attorney:||Hon. Barbara D. Underwood, Acting Attorney General
By: Paul F. Cagino, Esq., Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||May 18, 2018|
|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).
Claimant, an inmate, alleges his first amendment right to practice his Muslim religion was violated when he was required to provide a urine sample during his fast for Ramadan. His claim alleges damages in the sum of $10,000.
Defendant contends in support of its motion that it was not served with a copy 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 it is the usual business practice of the Attorney General's Office to record the receipt of claims in its digital case-management 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). Subsequent to the return date of the motion claimant notified the Court of his change of address upon his return to prison, stating in the letter that he served the claim by certified mail. However, claimant failed to timely oppose the motion, the letter he belatedly submitted was unsworn, and he failed to submit a copy of the certified return receipt card to support his contention that the claim was properly served. There being no admissible evidence that the claim was served on the Attorney General by certified mail, return receipt requested, dismissal of the claim is required.
Accordingly, defendant's motion is granted and the claim is dismissed.
May 18, 2018
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims
The following papers were considered:
1. Notice of Motion to Dismiss dated February 28, 2018;
2. Affirmation of Paul F. Cagino, Esq., dated February 28, 2018, with Exhibit A;
3. Letter from Michael Monroe dated April 3, 2018.