New York State Court of Claims

New York State Court of Claims

DIXON v. STATE OF NEW YORK, #2000-001-006, Claim No. 100733, Motion No. M-60989


Synopsis


Defendant's motion is granted; the claim is dismissed for failure to serve the Attorney-General in a timely fashion.

Case Information

UID:
2000-001-006
Claimant(s):
MARK E. DIXON
Claimant short name:
DIXON
Footnote (claimant name) :

Defendant(s):
STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
100733
Motion number(s):
M-60989
Cross-motion number(s):

Judge:
Susan Phillips Read
Claimant's attorney:
Mark E. Dixon, Pro Se
Defendant's attorney:
Hon. Eliot Spitzer, NYS Attorney GeneralBy: J. Gardner Ryan, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
April 6, 2000
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers were read and considered on defendant's motion for an order pursuant to CPLR 3211 (a) (2) and (8) for an order dismissing the claim for failure to comply with the requirements of Court of Claims Act § 10: Notice of Motion to Dismiss Claim, dated December 6, 1999 and filed December 8, 1999; Affirmation of J. Gardner Ryan, Esq., dated December 6, 1999 and filed December 8, 1999, with annexed Exhibits 1 and 2; and the Claim, sworn to July 7, 1999 and filed July 16, 1999.

The claim in this action, which was filed on July 16, 1999, alleges that on May 16, 1999, at Green Haven Correctional Facility, claimant Mark E. Dixon ("claimant") was falsely charged with attempting to assault a correction officer and, in addition, was verbally abused and taunted by correction officers. Although the claim was filed with the Court within ninety days of its



accrual (Court of Claims Act §§ 10 [3] and 10 [3-b]), counsel for defendant State of New York ("defendant") has moved to dismiss the action on the ground that the claim was not timely served on the Attorney-General.

The copy of the claim served on the Attorney-General bears a stamp noting its receipt on November 15, 1999 (Affirmation of J. Gardner Ryan, Esq., dated December 6, 1999 and filed December 8, 1999, Exhibit 1). Further proof that this was the date of service is found in the Court's own files, which contain photocopies of certified mail, return receipts establishing receipt by the Court of Claims on July 16, 1999 and receipt by the New York State Department of Law on November 15, 1999.

Compliance with the filing and service requirements contained in sections 10 and 11 of the Court of Claims Act is a jurisdictional prerequisite to bringing and maintaining an action in this Court (Buckles v State of New York, 21 NY 418), and failure to comply constitutes a fatal jurisdictional defect requiring dismissal (Byrne v State of New York, 104 AD2d 782). Section 11 (a) requires that a copy of the claim be served on the Attorney-General, either personally or by certified mail, return receipt requested, "within the times hereinbefore provided for filing with the clerk of the court." As noted, section 10 (3) requires that a claim to recover for personal injury caused by negligence or an unintentional tort be served within ninety days after its accrual,



and the same time requirement is placed on claims alleging an intentional tort (Court of Claims Act § 10 [3-b]). Claimant, therefore, failed to serve his claim on the Attorney-General in a timely fashion, and defendant's counsel has properly raised the defense of untimeliness in a pre-answer motion (see, Court of Claims Act § 11 [c]).

Defendant's motion is granted; the claim is dismissed.

April 6, 2000
Albany, New York

HON. SUSAN PHILLIPS READ
Judge of the Court of Claims