New York State Court of Claims

New York State Court of Claims

GARCIA v. THE STATE OF NEW YORK, #2000-001-023, Claim No. 98435, Motion No. M-61382


Synopsis


Court's Order to Show Cause for claimant's failure to comply with service requirements is granted, the claim is dismissed.

Case Information

UID:
2000-001-023
Claimant(s):
MICHAEL GARCIA
Claimant short name:
GARCIA
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
98435
Motion number(s):
M-61382
Cross-motion number(s):

Judge:
SUSAN PHILLIPS READ
Claimant's attorney:
Michael Garcia, Pro Se
Defendant's attorney:
Hon. Eliot Spitzer, NYS Attorney GeneralBy: Catherine M. Callahan, Legal Assistant
Third-party defendant's attorney:

Signature date:
June 23, 2000
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers were read and considered in response to the Order to Show Cause issued by this Court: Order to Show Cause, dated March 22 and filed March 22, 2000; letter response of Catherine M. Callahan, NYS Dept. of Law, dated April 13 and received April 13, 2000; letter response of Michael Garcia, dated May 5 and received May 11, 2000, with annexed exhibit; and the Claim, sworn to May 2 and filed June 10, 1998, with annexed document. This claim arose at Clinton Correctional Facility in February 1998, Claimant Michael Garcia ("claimant") alleges that he was wrongfully confined to keeplock for a period of ten days. The claim was filed on June 10, 1998 and annexed to it was a document captioned "Notice of Intention," which was sworn to March 6, 1998 (Claim, sworn to May 2 and filed June 10, 1998, with annexed document ["claim"]). When no answer was interposed, the Court inquired and was told that the New York State Attorney-General had not been served with the claim, as required by Court of Claims Act § 11 (a).

The Court then directed both parties to make written submissions on the issue of whether the claim should be dismissed for lack of jurisdiction (Order to Show Cause, dated March 22 and filed March 22, 2000). In response, the Court received from defendant State of New York a letter stating that the Office of the Attorney-General had not been served with a claim (letter response of Catherine M. Callahan, NYS Dept. of Law, dated April 13 and received April 13, 2000). Claimant replied by forwarding a second copy of the affidavit of service which made up part of the document captioned "Notice of Intention," which was annexed to the claim. This affidavit, sworn to in March 1998, states that the Notice of Intention to File a Claim was sent to both the Court[*] and the Attorney-General on March 8, 1998.

Section 11 (a) of the Court of Claims Act requires that both a notice of intention to file a claim and the subsequent claim be served upon the Attorney-General either in person or by certified mail, return receipt requested. Even if claimant preserved his right to commence the action by proper service of a timely notice of intention, he was still required to serve the subsequent claim on the Attorney-General.

Inasmuch as claimant has presented no evidence to establish service of the claim on the Attorney-General, the Court dismisses Claim No. 98435.

June 23, 2000
Albany, New York

HON. SUSAN PHILLIPS READ
Judge of the Court of Claims




[*]
Any filing with the Court was unnecessary: Chapter 466 of the Laws of 1995, effective August 2, 1995, removed the requirement to file a notice of intention with the Court of Claims.