New York State Court of Claims

New York State Court of Claims

LOPEZ v. THE STATE OF NEW YORK, #2000-010-052, Claim No. 93484


Synopsis


Inmate assault by correction officer

Case Information

UID:
2000-010-052
Claimant(s):
MICHAEL LOPEZ
Claimant short name:
LOPEZ
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
93484
Motion number(s):

Cross-motion number(s):

Judge:
Terry Jane Ruderman
Claimant's attorney:
MICHAEL LOPEZPro Se
Defendant's attorney:
HON. ELIOT SPITZER
Attorney General for the State of New YorkBy: Elyse Angelico, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
August 3, 2000
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision
Claimant, an inmate proceeding pro se, seeks damages for personal injuries that he allegedly sustained from the use of excessive force by four correction officers at Sing Sing Correctional Facility ("Sing Sing"). A unified trial was held to determine liability and damages.
Claimant testified that on January 24, 1996, while in the psychiatric unit at Sing Sing for depression and medicated on Prozac, he was pushed down with plexiglass and "hog tied" by the correction officers.[1]
Claimant further testified that he was taken to a laundry room and rammed into a laundry machine.
Defendant moved to dismiss on the ground that claimant failed to serve a copy of the claim upon the attorney general, as mandated by Court of Claims Act § 11. In support of the application, defendant submitted an affidavit of Carol A. McKay, Senior Clerk in the Albany Office of the Attorney General of the State of New York, which stated that Claim No. 93484 was never served upon the attorney general (
Ex A). Claimant did not present any evidence of either personal service or service by certified mail, return receipt requested upon the attorney general. The requirements of Court of Claims Act § 11 are jurisdictional in nature (see, Finnerty v. New York State Thruway Authority, 75 NY2d 721).
Accordingly, defendant's motion to dismiss, upon which decision was reserved, is hereby GRANTED (
see, Adkison v. State of New York, 226 AD2d 409).
LET JUDGMENT BE ENTERED DISMISSING CLAIM NO. 93484.


August 3, 2000
White Plains , New York

HON. TERRY JANE RUDERMAN
Judge of the Court of Claims




[1]
All quotations are to the trial notes or audio tapes unless otherwise indicated.