New York State Court of Claims

New York State Court of Claims
WELCH v. SCHENECTADY COUNTY, NYS OFFICE OF CHILDREN AND FAMILY SERVICES, SUSAN FITZGERALD, SUSANNA HURLEY, # 2021-040-048, Claim No. 136375, Motion No. M-97031

Synopsis

Motion by Non-State Defendant's denied as motion papers not served upon State as required by Uniform Rules for the Court of Claims 206.9(b). However, Court sua sponte dismissed Claim against Schenectady County and individuals for lack of jurisdiction.

Case information

UID: 2021-040-048
Claimant(s): AARON WELCH, SR.
Claimant short name: WELCH
Footnote (claimant name) :
Defendant(s): SCHENECTADY COUNTY, NYS OFFICE OF CHILDREN AND FAMILY SERVICES, SUSAN FITZGERALD, SUSANNA HURLEY
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 136375
Motion number(s): M-97031
Cross-motion number(s):
Judge: CHRISTOPHER J. McCARTHY
Claimant's attorney: Aaron Welch, Sr., Pro Se
Defendant's attorney: For Schenectady County, Fitzgerald, and Hurley
BURKE, SCOLAMIERO & HURD, LLP
By: Judith B. Aumand, Esq.
Third-party defendant's attorney:
Signature date: September 17, 2021
City: Albany
Comments:
Official citation:
Appellate results:
See also (multicaptioned case)

Decision

For the reasons set forth below, the pre-Answer Motion to Dismiss by Defendants Schenectady County, Susan Fitzgerald, and Susanna Hurley, is denied. However, the Court, sua sponte, dismisses the Claim as to those named Defendants for lack of jurisdiction.

The Claim, which was filed in the office of the Clerk of the Court on May 20, 2021, asserts that, in May 2013, the Schenectady County Department of Social Services (hereinafter, "DSS") commenced a neglect and child abuse proceeding against the mother of Claimant's children. It is further alleged that, in October 2013, DSS employees, Ms. Fitzgerald and Ms. Hurley, required that the mother of Claimant's children ensure that the children have no contact with Claimant, though Claimant asserts that he was never accused of any wrongdoing. Claimant asserts that, after lengthy legal proceedings, on February 18, 2021, the Court granted his request to have visitation rights with his children. Claimant asserts improper training of DSS employees, harassment, and violation of his due process rights.

Defendants Schenectady County, Susan Fitzgerald, and Susanna Hurley, seek dismissal of the Claim against them on the basis that this Court lacks jurisdiction over them.

In addition to complying with the service and filing requirements of CPLR 2214(b) and (c), a party making a motion in the Court of Claims must follow the rules set forth in the Uniform Rules for the Court of Claims (Uniform Rules for the New York State trial Courts, Part 206). As pertinent herein, 206.9 relates to Motion Procedure. 206.9(b) states in part:

The moving party shall also serve a copy of all affidavits and briefs upon all other parties at the time of service of the notice of motion.

Thus, the Motion papers had to be served upon Claimant and Defendant State of New York. The Affidavit of Service attached to the Motion papers establishes that only Claimant was served with the Motion. Therefore, the Motion by Defendants Schenectady County, Susan Fitzgerald, and Susanna Hurley, is denied for failure to comply with the Uniform Rules for the Court of Claims 206. 9(b).

However, the Court sua sponte dismisses the Claim as to those named Defendants for lack of jurisdiction. The Court of Claims is a court of limited jurisdiction with power to hear claims against the State and certain public authorities (NY Const Art VI; Court of Claims Act 9). This Court does not have jurisdiction over the County of Schenectady, its agencies, or any individual employee thereof (Whitmore v State of New York, 55 AD2d 745, 746 [3d Dept 1976], lv denied 42 NY2d 810 [1977]; Ingram v State of New York, UID No. 2019-040-048 [Ct Cl, McCarthy, J., July 3, 2019]; Kaplan v State of New York, UID No. 2018-040-098 [Ct Cl, McCarthy, J., Oct. 25, 2018]; Damiano v State of New York, UID No. 2017-040-150 [Ct Cl, McCarthy, J., Dec. 14, 2017]; Lyons v State of New York, UID No. 2004-030-904 [Ct Cl, Scuccimarra, J., Feb. 18, 2004]; Webb v State of New York and The Administration for Children's Services (ACS), UID No. 2003-016-051 [Ct Cl, Marin, J., July 1, 2003]).

Based upon the foregoing, that portion of the Claim alleging wrongdoing by Defendants Schenectady County, Susan Fitzgerald, and Susanna Hurley, is dismissed. The portion of the Claim asserted against the only properly named Defendant, State of New York, remains. The State served a Verified Answer to the Claim on June 28, 2021 and filed it with the office of the Clerk of the Court on June 29, 2021.

September 17, 2021

Albany, New York

CHRISTOPHER J. McCARTHY

Judge of the Court of Claims

The following papers were read and considered by the Court on Defendants Schenectady County, Susan Fitzgerald, and Susanna Hurley's Motion for dismissal:

Papers Numbered

Notice of Motion, Affirmation in Support,

& Exhibits attached 1

Claimant's Reply to the Motion to Dismiss

& Exhibits attached 2

Moving Defendants' Reply Affirmation 3

Claimant's Sur-Reply 4

Moving Defendants' letter regarding

Claimant's Sur-Reply 5

Filed Papers: Claim, Answer