Motion to dismiss granted, claim not served and not timely filed.
|Claimant short name:||ERBY|
|Footnote (claimant name) :|
|Defendant(s):||WILLIAM LEE, SUPERINTENDENT|
|Footnote (defendant name) :|
|Claimant's attorney:||BARON ERBY
|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 the State's unopposed motion to dismiss:
Notice of Motion, Attorney Supporting Affirmation and Exhibits
On October 19, 2015, claimant served the Attorney General's office with a "Notice of Intention to File a Claim" by regular mail (Ex. A). The allegations of the Notice of Intention to File a Claim state that during claimant's incarceration at Eastern NY Correctional Facility, a number of his books were missing after his cell had been searched an April 16, 2015. On March 10, 2016, claimant filed a claim with the Court based upon the same allegations set forth in the Notice of Intention to File a Claim arising out of a cell search on April 16, 2015, but with a specified date of accrual of May 8, 2015.
The State moves to dismiss the claim, noting that the Notice of Intention to File a Claim was served by regular mail, which is not a manner of service authorized by Court of Claims Act § 11, and that, in any event, service of a Notice of Intention to File a Claim is not available in a loss of property claim brought by an inmate under Court of Claims Act § 10 (9) (see Pristell v State of New York, 40 AD3d 1198, 1198-1199 [3d Dept 2007]). Court of Claims Act § 10 (9) requires that an inmate property claim be filed with the clerk of the court and that a copy of the claim be served on the attorney general either personally or by certified mail, return receipt requested, within 120 days after the date upon which the inmate exhausted his administrative remedy (see Trimble v State of New York, 142 AD3d 1256 [3d Dept 2016]).
The State moves to dismiss the claim on the ground that it was never served with a copy of the claim. In support of its motion to dismiss, the State submits an affidavit sworn to on May 31, 2018 by Debra L. Mantell, a Legal Assistant II in the Albany office of the Attorney General (Ex. B). Mantell affirmed that two searches of the State's digital case management system failed to locate any record of receipt of a copy of the claim (id.). The service requirements set forth in Court of Claims Act §§ 10 and 11 are jurisdictional in nature and require strict compliance as a precondition of suit against the State (see Dreger v New York State Thruway Auth., 81 NY2d 721, 724 ). A failure to comply with any of the service provisions is a jurisdictional defect compelling the dismissal of the claim (see Kolnacki 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]). 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 at 724). Thus, this Court is without jurisdiction over this claim.
The Court finds that the State has offered sufficient proof in support its motion to dismiss to establish a copy of the claim was not served upon the State and that the claim was not timely filed. Claimant has not submitted any opposition to the motion.
Accordingly, the State's unopposed motion to dismiss Claim No. 127631 is GRANTED.
July 23 2018
White Plains, New York
Judge of the Court of Claims