|Claimant short name:||TORRES|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||RICHARD E. SISE|
|Claimant's attorney:||ARMANDO TORRES, PRO SE|
|Defendant's attorney:||HON. LETITIA JAMES, ATTORNEY GENERAL
BY: Darren Longo, Esq.
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||October 8, 2020|
|See also (multicaptioned case)|
The following papers were read on Defendant's motion to dismiss pursuant to CPLR 3211(1) :
1. Notice of Motion filed July 15, 2020;
2. Affirmation of Darren Longo affirmed July 13, 2020 with Exhibits A-B annexed;
3. Letter by Armando Torres dated July 29, 2020 and received August 4, 2020.
Filed papers: Claim, Answer
In this action based on claimant's transfer from Wende Correctional Facility to Five Points Correctional Facility and its impact on his medical care, defendant has moved to dismiss the claim on the basis that it was not served in the manner prescribed by Court of Claims Act § 11(a) (1).
Under Court of Claims Act § 11 (a) (1) a copy of the claim, and any notice of intention, must be served either personally or by certified mail, return receipt requested on the Attorney General. In support of the motion to dismiss defendant has submitted a copy of an affidavit of service prepared by claimant in which he avers that he served the claim upon the Attorney General by regular mail on January 17, 2020. Failure to serve the claim in the manner prescribed deprives the court of jurisdiction (Spaight v State of New York, 91 AD3d 995 [3d Dept 2012]) and as such, the motion to dismiss should be granted.
Accordingly, it is
ORDERED, that the motion is granted and the claim is dismissed.
October 8, 2020
Albany, New York
RICHARD E. SISE
Judge of the Court of Claims
1. In a letter dated July 29, 2020 claimant informed the court that he was withdrawing his motion to strike affirmative defenses and expressed a desire to have the notice of intention treated as a claim. Though the motion to strike has been marked as withdrawn, any application for leave to treat the notice of intention as a claim must be made by formal motion.