Claim dismissed for lack of service on the Attorney General.
|Claimant(s):||KNIGHTS OF COLUMBUS FR. LOUIS H. WALTERS COUNCIL #7928|
|Claimant short name:||KNIGHTS OF COLUMBUS|
|Footnote (claimant name) :|
|Defendant(s):||OFFICE OF THE NEW YORK STATE COMPTROLLER and THOMAS P. DiNAPOLI (in his official capacity as New York State Comptroller)|
|Footnote (defendant name) :|
|Judge:||W. BROOKS DeBOW|
|Claimant's attorney:||No Appearance|
|Defendant's attorney:||LETITIA JAMES, Attorney General
of the State of New York
By: Anthony Rotondi, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||June 15, 2021|
|See also (multicaptioned case)|
This claim, which was filed with the Clerk of the Court of Claims on December 8, 2020, seeks a declaratory judgment that unclaimed funds currently in the possession of the Office of the New York State Comptroller and New York State Comptroller Thomas P. DiNapoli are the property of claimant, that claimant is entitled to remittance of those funds, and that defendant must immediately remit the funds to claimant. No answer or affidavit of service on the Attorney General was filed with the Court, prompting the Court to issue this Order to Show Cause, filed on April 21, 2021, which required claimant to demonstrate why this claim should not be dismissed on jurisdictional grounds for lack of service of the claim on the Attorney General, as required by Court of Claims Act § 11 (a). Claimant has not responded to the Order to Show Cause, but the Office of the Attorney General (OAG) has submitted papers in response.
Court of Claims Act § 11 (a) (i) requires service of the claim upon the Attorney General. It is well established that the filing and service requirements of the Court of Claims Act are jurisdictional in nature, and that the failure to timely serve the claim upon the Attorney General deprives the Court of subject matter jurisdiction (see Finnerty v New York State Thruway Auth., 75 NY2d 721, 722-723 ; Matter of Dreger v New York State Thruway Auth., 177 AD2d 762, 762-763 [3d Dept 1991], affd 81 NY2d 721 ; Locantore v State of New York, UID No. 2009-038-517 [Ct Cl, DeBow, J., Feb. 11, 2009]).
The affirmation of the Assistant Attorney General (AAG) in response to the Order to Show Cause states that there is no record that the OAG was ever served with the claim (see Rotondi Affirmation, ¶¶ 4-5). The OAG also submits the affidavit of Debra L. Mantell, a Legal Assistant II employed by the OAG, who avers that on or about January 12, 2021, the OAG received correspondence from the Court of Claims dated January 12, 2021, stating that the claim had been filed with the Court on December 8, 2020 (see id., attachment [Mantell Affidavit, ¶ 5]). Mantell avers that a search of the OAG's digital case management system failed to locate any record that the OAG had been served with the claim (see id.). Mantell further avers that on January 12, 2021, the OAG sent an email request to the Clerk of the Court of Claims for a copy of the claim, and that upon receipt of a copy of the filed claim from the Court, a second search of the OAG's digital case management system again failed to locate any record that the OAG had been served with a notice of intention or a claim with regard to the allegations set forth in the claim that was filed with the Court on January 12, 2021 (see id. at ¶¶ 6-8).
Defendant's submission demonstrates prima facie that the claim was not served on the Attorney General as required by Court of Claims Act § 11 (a) (i), and by failing to respond to the Order to Show Cause, claimant has failed to rebut that showing. Because it has not been shown that the claim was served upon the Attorney General as required by Court of Claims Act § 11 (a) (i), the Court's jurisdiction over the claim has not been established, and the claim must be dismissed.
Accordingly, it is
ORDERED, that upon motion number M-96673, claim number 135721 is DISMISSED.
June 15, 2021
Saratoga Springs, New York
W. BROOKS DeBOW
Judge of the Court of Claims
1. Claim No. 135721, filed December 8, 2020;
2. Order to Show Cause (M-96673), filed April 21, 2021;
3. Affirmation of Anthony Rotondi, AAG, in Response to the Court's Order to Show Cause, dated May 12, 2021, with attachment;
4. Affidavit of Debra L. Mantell, sworn to May 4, 2021;
5. Affidavit of Service of Consoula N. Darling, sworn to May 12, 2021.