Motion to dismiss granted, defendant not served.
|Claimant short name:||MATTHEWS|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Claimant's attorney:||MARK MATTHEWS
|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 29, 2018|
|See also (multicaptioned case)|
The following papers were read and considered by the Court on defendant's unopposed motion to dismiss:
Notice of Motion, Attorney's Supporting Affirmation and Exhibits
Defendant moves to dismiss Claim No. 127001 on the grounds that defendant was never served with a copy of the claim.
Defendant submits an affidavit sworn to on January 3, 2018 by Debra L. Mantell a Legal Assistant II in the office of the Attorney General, to support defendant's motion to dismiss. Mantell affirmed that she searched defendant's digital case management system and did not find any record of receipt for either a notice of intention to file a claim or copy of the claim. (Defendant's Ex. A).
The Court finds that defendant has offered sufficient proof to support its motion and to establish that the defendant was not served with either a notice of intention to file a claim or a copy of the claim (see Caci v State of New York, 107 AD3d 1121 [3d Dept 2013]). Claimant has not submitted any opposition to the motion. Accordingly, the Court lacks jurisdiction over the claim due to claimant's failure to serve defendant with either a Notice of Intention to File a Claim or a copy of the claim as required by the Court of Claims Act § 11 (a) (i).
Additionally, as noted by defendant, the filing of the claim was untimely.
Claimant filed Claim No. 127001 with the Court on November 6, 2015, with an alleged accrual date of July 21, 2015.
The Court of Claims Act mandates that a claim must be served and filed within 90 days of accrual (Court of Claims Act § 10 ). Both service and filing of the claim must occur within the statutory time period mandated by the Court of Claims Act (see Dreger v. New York State Thruway Auth., 81 NY2d 721, 724 ). The requirements set forth in the Court of Claims Act §§ 10 and 11 are jurisdictional in nature and require strict compliance as a precondition of suit against the State (see Prisco v State of New York, 62 AD3d 978 [2d Dept 2009]). A failure to comply with any aspect of the service provisions is a jurisdictional defect compelling the dismissal of the claim (see Kolnaki v State of New York, 8 NY3d 277, 281  [ "(t)he failure to satisfy any of the (statutory) conditions is a jurisdictional defect"]; Welch v State of New York, 286 AD2d 496, 497-98 [2d Dept 2001]). Here, claimant filed the claim with the Court, beyond 90 days after accrual of the claim and the time mandated for filing (Court of Claims Act § 10 [3-b]). Therefore, the claim was not timely filed (see Bennett v State of New York, 106 AD3d 1040 [2d Dept 2013]).
Accordingly, the defendant's unopposed motion to dismiss Claim No. 127001 is hereby GRANTED, on the grounds that the claim was never served upon defendant and that the claim was not timely filed.
January 29, 2018
White Plains, New York
Judge of the Court of Claims