Claim was dismissed for failure to serve it on the Office of the Attorney General.
|Claimant(s):||MARVENIA D. GRAHAM|
|Claimant short name:||GRAHAM|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||FRANCIS T. COLLINS|
|Claimant's attorney:||No Appearance|
|Defendant's attorney:||Honorable Letitia James, Attorney General
By: Albert D. DiGiacomo, Esq., Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||August 16, 2021|
|See also (multicaptioned case)|
Defendant moves to dismiss the instant claim for lack of jurisdiction pursuant to CPLR 3211 (a) (2), (7) and (8).
Claimant filed a claim on September 4, 2020 seeking damages for incorrect and misleading information allegedly provided by employees of the "SLC Family Court" (defendant's Exhibit B, ¶ 2). Claimant also alleges a Deputy Sheriff and Court Attorney interfered with her right to be informed of the allegations against her.
Defendant contends that the instant claim must be dismissed as it was not served upon the Office of the Attorney General.
The State's waiver of immunity under section 8 of the Court of Claims Act is contingent upon claimant's compliance with the specific conditions to suit set forth in article II of the Court of Claims Act (Lepkowski v State of New York, 1 NY3d 201, 206 ). Among these conditions is that contained in Court of Claims Act § 11 (a) (i) which provides, in relevant part, 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 failure to serve a claim upon the Attorney General is a non-waivable jurisdictional defect which divests this Court of subject matter jurisdiction (Finnerty v New York State Thruway Auth., 75 NY2d 721, 723 ; Caci v State of New York, 107 AD3d 1121 [3d Dept 2013]; Johnson v New York State, 71 AD3d 1355, 1355 [3d Dept 2010], lv denied 15 NY3d 703 ; cf. Court of Claims Act § 11 [c] [ii]). Defendant's contention that the claim was not served is supported by the affidavit of Debra L. Mantell, Legal Assistant II in the Albany Office of the Attorney General. Ms. Mantell states in her affidavit that it is the usual business practice of the Attorney General's Office to record the receipt of claims and notices of intention to file claims in its digital case-management system. Ms. Mantell states further that the digital case-management system does not reflect receipt of either a claim or a notice of intention to file a claim in this matter. There being no opposition to the motion, the claim must be dismissed for lack of service.Accordingly, defendant's motion is granted and the claim is dismissed.
August 16, 2021
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims
1. Notice of Motion dated July 8, 2021;
2. Affirmation in support dated July 8, 2021, with Exhibit A and B;3. Affidavit of Debra L. Mantell sworn to January 4, 2021.