The State's motion to dismiss the claim for lack of jurisdiction is granted and the claim is dismissed. The pro se claimant did not file a notice of intention and failed to serve the Attorney General with a copy of the claim.
|Claimant short name:||O'KIEFFE|
|Footnote (claimant name) :|
|Defendant(s):||STATE OF NEW YORK|
|Footnote (defendant name) :||The caption has been amended to reflect the proper defendant.|
|Judge:||J. DAVID SAMPSON|
|Claimant's attorney:||ANDREW O'KIEFFE, Pro Se|
|Defendant's attorney:||HON. LETITIA JAMES
New York State Attorney General
BY: Wendy E. Morcio, Esq.
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||September 11, 2019|
|See also (multicaptioned case)|
Pro Se claimant Andrew O'Kieffe alleges in claim no. 125740 that on November 10, 2014 he was cut on the side of his face as he was returning to his dormitory residence at Gowanda Correctional Facility (Gowanda) due to the negligence of the defendant. Defendant State of New York moves to dismiss the claim for lack of jurisdiction. Claimant failed to appear or otherwise oppose defendant's motion.
Court of Claims Act §§ 10 (3) and 11 (a) (i) provide that a claim for damages based on negligence must be filed and a copy served upon the Attorney General personally or by certified mail, return receipt requested, within ninety (90) days of accrual of the claim unless within the same ninety (90) day period, the claimant serves upon the Attorney General a notice of intention to file a claim, in which event the claim must be filed and served within two (2) years of accrual of the claim.
The filing and service requirements of the Court of Claims Act are jurisdictional in nature and must be strictly construed (Dreger v New York State Thruway Auth., 81 NY2d 721 ; Finnerty v New York State Thruway Auth., 75 NY2d 721 ). The failure to comply with the filing and service requirements of the Court of Claims Act deprives the Court of jurisdiction, requiring dismissal of the claim (Ivy v State of New York, 27 AD3d 1190 [4th Dept 2006]; Byrne v State of New York, 104 AD2d 782 [2d Dept 1984], lv denied 64 NY2d 607 ). Defendant argues that neither a notice of intention to file a claim nor a claim was ever served upon the Attorney General.
Attached to defendant's motion as Exhibit A is an affidavit of Debra L. Mantell, Legal Assistant II in the Office of the Attorney General. Ms. Mantell avers that she is familiar with the digital case management system maintained by the Attorney General's Office which records all notices of intention to file a claim, claims and motions received by the Attorney General. According to Ms. Mantell's affidavit, a search of the digital case management system was conducted on or about March 10, 2015 when the Attorney General Office's was advised that a claim had been filed, and a second search was conducted on or about June 4, 2019. Neither search located any record that the Attorney General had received a notice of intention or a claim from claimant for an incident at Gowanda which occurred on or about November 10, 2014.
No affidavit of service is attached to the claim as filed and claimant failed to appear or offer any evidence to establish service of the claim upon the Attorney General. Claimant's failure to serve the claim upon the Attorney General renders the claim jurisdictionally defective, requiring its dismissal (Zoeckler v State of New York, 109 AD3d 1133 [4th Dept 2013]).
Accordingly, defendant's motion no. M-94205 is granted and claim no. 125740 is dismissed.
September 11, 2019
Buffalo, New York
J. DAVID SAMPSON
Judge of the Court of Claims
The following were read and considered by the Court:
1. Notice of motion and affidavit of Assistant Attorney General Wendy E. Morcio sworn to June 10, 2019, with annexed Exhibit A.