Defendant's motion to dismiss denied, claim not served upon defendant.
|Claimant short name:||BIELER|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :||The Court has, sua sponte, amended the caption to reflect the only proper party defendant.|
|Claimant's attorney:||JEFFREY BIELER
|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:||March 27, 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
Claimant filed Claim No. 126436 with the Court on July 15, 2015. The State moves to dismiss the claim on the ground that the State was never served with a copy of the claim.
In support of its motion to dismiss, the State submits an affidavit sworn to on February 21, 2018 by Debra L. Mantell, a Legal Assistant II in the Albany office of the Attorney General (State's Ex. A). Mantell affirmed that two searches of the State's digital case management system failed to locate any record of receipt of either a Notice of Intention to File a Claim or a copy of the claim (id.).
Court of Claims Act § 11 (a) (i) requires that a copy of the claim be served on the Attorney General either personally or by certified mail, return receipt requested, within the time provided for filing with the clerk of the court (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 the State and claimant has not submitted any opposition to the motion.
The State's unopposed motion to dismiss is GRANTED and the claim is dismissed.
March 27, 2018
White Plains, New York
Judge of the Court of Claims