Pro se claimant's motion for default. Defendant's cross-motion to dismiss due to failure to serve claim.
|Claimant short name:||DIAZ|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :||The Court has amended the caption, sua sponte, to reflect the State of New York as the proper defendant.|
|Judge:||GINA M. LOPEZ-SUMMA|
|Claimant's attorney:||Miguel Diaz, Pro Se|
|Defendant's attorney:||Hon. Letitia James, Attorney General
By: Heather R. Rubinstein, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||May 13, 2020|
|See also (multicaptioned case)|
The following papers were reviewed by the Court on this motion: Claimant's Notice of Motion; Defendant's Notice of Cross Motion; Defendant's Affirmation in Opposition to Motion for Default and in Support of Motion to Dismiss; Claimant's Correspondence to the Court dated November 5, 2019; Defendant's Correspondence to the Court dated May 13, 2020(3) and the filed Claim.
Claimant, Miguel Diaz, a pro se inmate, has brought a motion seeking an order granting him an "immediate" judgment in this action. In response, defendant, the State of New York, has brought a cross-motion pursuant to CPLR 3211 (a) (8) seeking an order dismissing the claim due to claimant's failure to serve the claim in accordance with Court of Claims Act (CCA) §§ 10 and 11.
On August 30, 2018, claimant filed a claim in which he alleged, inter alia, that his rights were violated during at disciplinary hearing held at Downstate Correctional Facility. The claim is written on a Federal Court form which states that it is brought under Civil Rights Act 42 USC § 1983. Claimant fails to state the grounds for his motion.
Defendant states in its cross-motion that the claim must be dismissed since the claim was never served on the Office of the Attorney General as required under the provisions of Court of Claims Act § 11 (a).
In response, claimant states that he served the claim on the Office of the Attorney General. Claimant, however, failed to present a copy of the certified mail receipt indicating proper service and receipt of the claim by the Office of the Attorney General. Additionally, a review of the filed claim reveals that the claim was filed without an affidavit of service attesting to proper and timely service of the claim upon defendant.
Court of Claims Act § 11 (a) provides that a copy of the claim ". . . shall be served personally or by certified mail, return receipt requested, upon the attorney general within the times hereinbefore provided for filing with the clerk of the court . . . ." The filing and service requirements contained in the Court of Claims Act § 11 are jurisdictional in nature and therefore must be strictly construed (Finnerty v New York State Thruway Authority, 75 NY2d 721 ). In this case, defendant has established that it did not receive a copy of the claim. Claimant has failed to refute defendant's showing of a lack of service by providing the Court with a copy of the certified mail receipt. Thus, the Court finds that the service requirements of Court of Claims Act § 11 (a) were not met in this case and that, as a result, the Court must dismiss the claim for lack of jurisdiction (Ayala v State of New York, UID No. 2019-053-555, [Ct Cl, Sampson, J., December 9, 2019]; Gillard v State of New York, UID No. 2019-038-568 [Ct Cl, DeBow, J., July 19, 2019]).
Therefore, for the foregoing reasons, claimant's motion is denied. Additionally, defendant's cross-motion is granted and the claim is dismissed.
May 13, 2020
Hauppauge, New York
GINA M. LOPEZ-SUMMA
Judge of the Court of Claims
3. In correspondence to the Court dated May 13, 2020 defendant stated that it failed to attach Exhibit A to its cross-motion and asked the Court to disregard any reference to Exhibit A in its cross-motion.