THE STATE OF NEW YORK, # 2019-054-056, Claim No. 130112, Motion No. M-94283, Cross-Motion No. CM-94327
State's motion to dismiss granted, no service of Notice of Intention to File a Claim or a claim upon the attorney general.
|Claimant(s):||DONALD M. DOVE|
|Claimant short name:||DOVE|
|Footnote (claimant name) :|
|Defendant(s):||EASTERN CORRECTIONAL FACILITY, INMATE
THE STATE OF NEW YORK
|Footnote (defendant name) :|
|Claimant's attorney:||DONALD M. DOVE
|Defendant's attorney:||HON. LETITIA JAMES
Attorney General for the State of New York
By: Glenn C. King, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||August 23, 2019|
|See also (multicaptioned case)|
The following papers numbered 1-3 were read and considered by the Court on the State's motion to dismiss and claimant's cross-motion for summary judgment:
Notice of Motion, Attorney's Supporting Affirmation and Exhibits........................1
Notice of Cross-Motion and Opposition to the State's motion, Claimant's Supporting Affidavits and Memorandum of Law.......................................................................2
Attorney's Affirmation in Opposition to Cross-Motion...........................................3
Claim No. 130112 was filed with the Court on August 11, 2017. 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, the State submits an affidavit sworn to on July 12, 2019 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 or of a Notice of Intention to File a Claim (State's Ex. A).(1)
Claimant opposes the State's motion and cross-moves for summary judgment on the claim.
In opposition to the State's motion, claimant maintains that on July 25, 2017, he served the Attorney General's office with a Notice of Intention to File a Claim. Claimant, however, does not submit any proof of service. Claimant's own self-serving statement, without any other proof, is insufficient to establish that he served the Attorney General's office with a Notice of Intention to File a Claim and to rebut the proof submitted by the State that a Notice of Intention to File a Claim was not received by the Attorney General's office (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). The Court finds that the State has established that the State was not served with a Notice of Intention to File a Claim or a copy of the claim. Thus, the Court is without jurisdiction over the claim.
Accordingly, the State's motion to dismiss the claim is hereby GRANTED and the claim is dismissed.
In light of the Court's determination to dismiss the claim, claimant's cross-motion for summary judgment is DENIED as moot.(2)
August 23, 2019
White Plains, New York
Judge of the Court of Claims
1. Mantell's searches disclosed only that the Attorney General's office had been served with a motion for leave to serve and file a late claim (Motion No. M-90842) with a proposed Notice of Intention to File a Claim attached thereto. The motion was denied (see Dove v State of New York, UID #2017-040-143 [Ct Cl, McCarthy, J., Dec. 11, 2017]).
2. Moreover, claimant's cross-motion warrants denial on the additional ground that, according to the affidavit sworn to on August 13, 2019 by Debra L. Mantell, a Legal Assistant II in the Albany office of the office of the attorney general, Mantell's two searches of the State's digital case management system failed to locate any record of receipt of a copy of the cross-motion (see Attorney's Affirmation in Opposition to Cross-Motion, Ex. A).