New York State Court of Claims

New York State Court of Claims
TESTA v. THE STATE OF NEW YORK, # 2018-054-100, Claim No. 131008, Motion No. M-92633

Synopsis

The Court's Order to Show Cause, the Court directed the parties to submit papers regarding the service of the claim upon the State. Claim dismissed, no service upon the State.

Case information

UID: 2018-054-100
Claimant(s): LEONARD N. TESTA
Claimant short name: TESTA
Footnote (claimant name) :
Defendant(s): THE STATE OF NEW YORK
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 131008
Motion number(s): M-92633
Cross-motion number(s):
Judge: WALTER RIVERA
Claimant's attorney: LEONARD N. TESTA
Pro Se
Defendant's attorney: HON. BARBARA D. UNDERWOOD
Attorney General for the State of New York
By: J. Gardner Ryan, Assistant Attorney General
Third-party defendant's attorney:
Signature date: October 2, 2018
City: White Plains
Comments:
Official citation:
Appellate results:
See also (multicaptioned case)

Decision

The following papers numbered 1-2 were read and considered by the Court on the Court's Order to Show Cause as to why the claim should not be dismissed:

Order to Show Cause.................................................................................................1

Attorney's Affirmation, Affidavit of Debra L. Mantell Sworn to on September 5, 2018..........................................................................................................................2

The claim was filed with the Court on February 16, 2018. The State did not file an answer. By Order to Show Cause, the Court directed the parties to submit papers regarding the service of the claim upon the State.

The State submitted an affidavit sworn to on September 5, 2018 by Debra L. Mantell, a Legal Assistant II in the Albany office of the office of the Attorney General. 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 (Mantell Affidavit).(1) Claimant did not submit any papers in response to the Court's Order to Show Cause.

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 [1992]). 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 [2007] ["(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). The Court finds that the State has established that a copy of the claim was not served upon the State. Thus, the Court is without jurisdiction over the claim.

ACCORDINGLY, IT IS ORDERED THAT THE CLAIM IS DISMISSED.

October 2, 2018

White Plains, New York

WALTER RIVERA

Judge of the Court of Claims


1. Mantell's searches disclosed only that the Attorney General's office had been served with a Notice of Intention to File a Claim by regular mail, which was received by the Attorney General's office on January 19, 2018, and a Notice of Intention to File a Claim served by certified mail, return receipt requested, which was received by the Attorney General's office on February 26, 2018.