Motion to dismiss granted, claim not served on defendant.
|Claimant short name:||MACLIN|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Claimant's attorney:||DARIUS MACLIN
|Defendant's attorney:||HON. BARBARA D. UNDERWOOD
Attorney General for the State of New York
By: Paul F. Cagino, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||July 23, 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, Supporting Affirmation and Exhibit
Claim No. 125980 was filed with the Court on April 16, 2015 alleging that on March 3, 2015, during claimant's incarceration at Eastern NY Correctional Facility, his personal property was lost and he was assaulted by three correction officers in his cell. The affidavit of service attached to the claim asserts that claimant served a copy of the claim upon the Attorney General's office by certified mail, return receipt requested on April 13, 2015.
In support of its motion to dismiss, the State submits an affidavit sworn to on May 30, 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.). Claimant has not submitted any opposition to the motion.
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 establish that neither a Notice of Intention to File a Claim nor a copy of the claim were served upon the State. Claimant has not submitted any opposition to the State's motion to dismiss.
Accordingly, the State's unopposed motion to dismiss Claim No. 125980 is GRANTED.
July 23, 2018
White Plains, New York
Judge of the Court of Claims