New York State Court of Claims

New York State Court of Claims

STRIBLING v. THE STATE OF NEW YORK, #2000-013-013, Claim No. 101100, Motion No. M-61319


Synopsis


Defendant's motion to dismiss claim for injuries received when Claimant slipped and fell on a knife while working in mess hall at Southport Correctional Facility. Motion granted and claim is dismissed

Case Information

UID:
2000-013-013
Claimant(s):
ALVIN D. STRIBLING
Claimant short name:
STRIBLING
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
101100
Motion number(s):
M-61319
Cross-motion number(s):

Judge:
PHILIP J. PATTI
Claimant's attorney:
ALVIN D. STRIBLING, Pro Se
Defendant's attorney:
ELIOT SPITZER
Attorney General of the State of New York
By: ELLEN LEARY COCCOMA, ESQ. Assistant Attorney General
Third-party defendant's attorney:

Signature date:
June 16, 2000
City:
Rochester
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision


On April 19, 2000, the following papers were read on Defendant's motion to dismiss the claim:

1. Notice of Motion

2. Affirmation of Ellen Leary Coccoma, Esq.

3. Affidavit of Carol A. McKay

4. Claim


Claimant is an inmate proceeding pro se. He filed this action on September 20, 1999 seeking damages for injuries he says he sustained when he slipped, fell and impaled himself on a cutting knife while working in the mess hall at Southport Correctional Facility.

Before me now is Defendant's motion to dismiss the claim on the grounds that it was never served upon the Attorney General as required by the Court of Claims Act (see, Court of Claims Act §10[3] and §11[b]).

In support of this motion, Defendant has submitted the affirmation of Assistant Attorney General Ellen Leary Coccoma, who explains that Defendant has never been served with the claim. Defendant also submitted an affidavit from Carol McKay, a Senior Clerk who works for the Attorney General. Ms McKay corroborates the information provided by Ms. Coccoma. She avers that she searched the relevant files maintained by the Attorney General's Claims Bureau and found no indication that the claim had been served on the Attorney General by Claimant.

Claimant has not opposed Defendant's motion to dismiss or provided the Court with proof that he complied with the service requirements of the Court of Claims Act, and there is no evidence in the Court's files that the claim was properly served on the Attorney General. The affidavit of service on file with the Clerk of the Court regarding this claim indicates only that the claim was "served" upon the Court of Claims. There is no affidavit of service indicating that Claimant served the Attorney General. Claimant did attach a domestic return receipt card to his claim which indicated that the Attorney General's legal office signed for a package on September 9, 1999. However, the September 9th package could not have contained the claim, which was dated and verified by Claimant on September 15, 1999.

Without proper service, the Court lacks personal jurisdiction of Defendant (Hodge v State of New York, 213 AD2d 766; Bogel v State of New York, 175 AD2d 493), and the claim must be dismissed.

For the reasons stated above, Defendant's motion is granted. Claim No. 101100 is dismissed.



June 16, 2000
Rochester, New York

HON. PHILIP J. PATTI
Judge of the Court of Claims