New York State Court of Claims

New York State Court of Claims

DUNN v. THE STATE OF NEW YORK, #2000-005-556, Claim No. 98551, Motion Nos. M-62308, M-62310, CM-62324


Synopsis


Defendant's cross-motion to dismiss claim is granted, rendering Claimant's motions for production of witnesses and documents moot.

Case Information

UID:
2000-005-556
Claimant(s):
HAROLD A. DUNN
Claimant short name:
DUNN
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
98551
Motion number(s):
M-62308, M-62310
Cross-motion number(s):
CM-62324
Judge:
Donald J. Corbett, Jr.
Claimant's attorney:
Harold A. DunnPro Se
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Carla T. Rutigliano, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
September 20, 2000
City:
Rochester
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

On September 13, 2000, the following papers, numbered 1 to 9, were read on motions by Claimant for the production of witnesses and documents and on cross-motion by Defendant for dismissal of the claim:

1, 2, 3, 4 Notices of Motion M-62308 & M-62310 and Affidavits Annexed

5, 6, 7 Notice of Cross-Motion, Affirmation, Affidavit and Exhibit Annexed
  1. Claimant's Opposing Affirmation and Exhibits Annexed
  2. Filed Papers: Claim
Upon the foregoing papers, the cross-motion is granted and the motions are denied as moot.

The underlying claim herein seeks damages for an alleged assault on Claimant by a correction officer. In Motion Nos. M-62308 and M-62310, Claimant seeks various witnesses and documents for his trial scheduled for November 1, 2000.

However, by cross-motion, Defendant seeks dismissal of the claim on jurisdictional grounds, alleging that no notice of intention to file a claim or a claim was ever served upon the Defendant and provides the affidavit of Carol A. McKay sworn to on July 22, 1998, averring under oath that a thorough search of the Defendant's files failed to find a record of any claim or notice of intention having been served. A review of the court's file does not reflect any sworn affidavit of service, albeit with some partially completed but unsworn affidavits appended to the claim. Additionally, no answer is in the file, further reflective of the failure to have served the claim. Since issue was never joined, the presentation of the jurisdictional defenses in Court of Claims Act §11(c) are not implicated. Furthermore, Claimant has failed to refute the allegations of non-service and has not provided any proof, in particular, the green card reflecting service by certified mail, return receipt requested, as required by Court of Claims Act §11(a).

In response, inter alia, Claimant alleges that he is an attorney pro se and opposes the relief sought. His request for oral argument is denied (22 NYCRR 206.9[c]).

The claim herein was filed on June 29, 1998, and alleges in Paragraph Four thereof that a Notice of Intention to file a claim was filed and served on June 20, 1998. In his papers opposing the instant motion Claimant provides a copy of a certified mail return receipt showing service upon the Defendant on August 21, 1998, which he contends is proof of service of the Notice of Intention herein.

Both the claim herein (filed on June 29, 1998) and its purported Notice of Intention (supposedly served and filed on June 20, 1998) precede the August 21, 1998 "proof of filing." I find that the proof of service affixed to the Claimant's opposing papers does not pertain to the instant matter before me. It may pertain to some other matter in the Court of Claims, but not Claim No. 98551. Additionally, Claimant asserts that the receipt demonstrates service of a Notice of Intention, not a claim, so regardless, Claimant does not even argue that the claim was served by certified mail, return receipt requested, as required by Court of Claims Act §11(a).

Accordingly, since the Claimant failed to serve the Defendant, and has not established that he did so, he failed to obtain jurisdiction of the Defendant, and the cross-motion seeking dismissal of the claim is granted. The motions for witnesses and documents at the trial are denied as moot. The claim is dismissed.


September 20, 2000
Rochester, New York
HON. DONALD J. CORBETT, JR.
Judge of the Court of Claims