New York State Court of Claims

New York State Court of Claims

DALNEY v. THE STATE OF NEW YORK, #2000-013-019, Claim No. 97398, Motion No. M-61664


Synopsis


Defendant's Motion to Dismiss the claim for failure to serve it by certified, return receipt mail is granted.

Case Information

UID:
2000-013-019
Claimant(s):
BARTRAM YIHNI DALNEY
Claimant short name:
DALNEY
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
97398
Motion number(s):
M-61664
Cross-motion number(s):

Judge:
PHILIP J. PATTI
Claimant's attorney:
BARTRAM YIHNI DALNEY, Pro Se
Defendant's attorney:
ELIOT SPITZER
Attorney General of the State of New York
BY: Carol A. Cocchiola, Esq. Assistant Attorney General
Third-party defendant's attorney:

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

Official citation:

Appellate results:
See also (multicaptioned case)



Decision


On June 21, 2000 the following papers were read on Defendant's motion to dismiss the claim:

Notice of Motion; Affirmation of Carol A. Cocchiola, Esq.; Affidavit of Carol A. McKay; Annexed Exhibit


Filed Papers: Claim


Claimant is an inmate proceeding pro se. He filed this action on November 26, 1997 seeking compensatory and punitive damages of $50,200.00 plus interest to compensate him for personal injuries and property damages he says he sustained when he was allegedly assaulted by correction officers while he was incarcerated at the 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], §10[3-b] and §11[a]).

In support of this motion, Defendant has submitted the affirmation of Assistant Attorney General Carol A. Cocchiola, 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. Cocchiola. 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. Although there is an affidavit of service on file with the Clerk of the Court regarding this claim, it indicates only that the claim was "served" upon the Attorney General by United States mail. Since the Court of Claims Act requires service upon the Attorney General by certified mail, return receipt requested (see, Court of Claims Act §11[a]; Hodge v State of New York, 213 AD2d 766), this affidavit cannot be sufficient to raise a factual issue as to whether Defendant was properly served.

Without proper service, the Court lacks jurisdiction over Defendant (Hodge v State of New York, 213 AD2d 766, supra; 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. 97398 is dismissed.



July 20, 2000
Rochester, New York

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