REGISTERED AGENT GYB, LLC, COLBY B. REAGAN, WALLER LANSDEN DORTCH & DAVIS, LLP, MATTHEW R. BURNSTEIN, PARTNER CHAIRMAN OF THE BOARD OF DIRECTORS, JAY H. NIXON III, BOARD MEMBER, J.D. THOMAS, BOARD MEMBER AND W. TRAVIS PARHAM, BOARD MEMBER, # 2020-045-020, Claim No. 131544, Motion No. M-95007
Follow-up order dismissing claim after order to show cause regarding lack of service.
|Claimant(s):||RICHARD JOSEPH YANNI|
|Claimant short name:||YANNI|
|Footnote (claimant name) :|
|Defendant(s):||COLBY B. REAGAN, PRINCIPAL OF RECORD &
REGISTERED AGENT GYB, LLC, COLBY B. REAGAN, WALLER LANSDEN DORTCH & DAVIS, LLP, MATTHEW R. BURNSTEIN, PARTNER CHAIRMAN OF THE BOARD OF DIRECTORS, JAY H. NIXON III, BOARD MEMBER, J.D. THOMAS, BOARD MEMBER AND W. TRAVIS PARHAM, BOARD MEMBER
|Footnote (defendant name) :|
|Judge:||GINA M. LOPEZ-SUMMA|
|Claimant's attorney:||Richard Joseph Yanni, Pro Se|
|Defendant's attorney:||Hon. Letitia James, Attorney General
By: Kimberly A. Kinirons, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||May 7, 2020|
|See also (multicaptioned case)|
The following papers were read and considered by the Court on this motion: Defendant's Affirmation with annexed Exhibits A-B and the filed Claim.
By an Order to Show Cause dated December 4, 2019, this Court directed claimant to submit proof that the claim in this matter had been served on defendant, the State of New York, in compliance with Court of Claims Act (CCA) § 11.
CCA § 11 (a) (i) states that:
"[t]he claim shall be filed with the clerk of the court; and, except in the case of a claim for the appropriation by the state of lands, a copy 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. Any notice of intention shall be served personally or by certified mail, return receipt requested, upon the attorney general within the times hereinbefore provided for service upon the attorney general. Service by certified mail, return receipt requested, upon the attorney general shall not be complete until the claim or notice of intention is received in the office of the attorney general. Personal service upon the attorney general shall be made in the same manner as described in section three hundred seven of the civil practice law and rules."
The Court of Appeals has long held that "[b]ecause suits against the State are allowed only by the State's waiver of sovereign immunity and in derogation of the common law, statutory requirements conditioning suit must be strictly construed"(Dreger v New York State Thruway Authority, 81 NY2d 721, 724 ). "[A]ccordingly, claimants who had not met the literal requirements of Court of Claims Act §11 had not properly commenced their actions" (Lichtenstein v State of New York, 93 NY2d 911, 913 ). Claimant has failed to put forth evidence showing that the claim was served upon the Attorney General's Office in accordance with the requirements of CCA § 11 (a) (i). Consequently, this Court has no jurisdiction over the action and must dismiss the claim.
Additionally, defendant has provided the Affidavit of Helen Orlowski, an Administrative Assistant in the Hauppauge Office of the Attorney General of the State of New York. Ms. Orlowski outlined her duties at the Attorney General's Office which included a familiarity with the record keeping system of the Claims Bureau. After a review of the office's records, Ms. Orlowski was unable to locate any records establishing that the Office of the Attorney General was served with the claim in this matter.
Finally, the claim improperly listed Colby B. Reagan, Principal of Record &
Registered Agent GYB, LLC, Matthew R. Burnstein, Chairman of the Board of Directors,
Jay H. Nixon III, Board Member, J.D. Thomas, Board Member, and W. Travis Parham, Board Member of Waller Lansden Dortch & Davis, LLP as defendants in this matter. The Court of Claims is a court of limited jurisdiction wherein claims primarily seeking monetary damages against the State of New York and certain public authorities are brought (CCA § 9). The Court of Claims does not have jurisdiction over non-State entities (id.). Additionally, individuals cannot be sued in their individual capacity in the Court of Claims (id.).
Therefore, for the foregoing reasons, the claim is dismissed.
May 7, 2020
Hauppauge, New York
GINA M. LOPEZ-SUMMA
Judge of the Court of Claims