New York State Court of Claims

New York State Court of Claims

BARKER v. THE STATE OF NEW YORK, #2000-016-070, Claim No. 99635


Synopsis


At start of pro se inmate's property loss claim trial, defendant moved to dismiss on the ground that it had never been served; claim was dismissed.

Case Information

UID:
2000-016-070
Claimant(s):
STEPHEN BARKER
Claimant short name:
BARKER
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
99635
Motion number(s):

Cross-motion number(s):

Judge:
Alan C. Marin
Claimant's attorney:
Stephen Barker
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Mary Kavaney, AAG
Third-party defendant's attorney:

Signature date:
August 28, 2000
City:
New York
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision
The claim of Stephen Barker arises from the confiscation of a walkman and adapter from his locker at Mid-Orange Correctional Facility on October 15, 1996. The parties appeared for trial on August 1, 2000 at the facility. At the commencement of the trial, defendant moved to dismiss the claim on the grounds that it had never been served on the Attorney General. See Exhibit A. Accordingly, no answer was ever filed or served.

Barker testified that he had in fact served the Attorney General and that he had received back a receipt. He explained that the clerk's office had requested that he send proof of service, so he sent his receipt to the facility law library to be copied -- but never got the copy back. Aside from this explanation, Barker
provided no additional evidence that he had in fact served the claim, such as inmate account records, which might have shown a deduction for the cost of certified mail around the time the claim was filed. Moreover, a March 10, 1999 letter from the Clerk of the Court to Barker indicates that in response to the request for proof of service, "this office received an Affidavit of Service of your Notice of Intention. This does not comply . . ." An apparent response from claimant, filed with the Clerk of the Court on March 12, 1999 states, in relevant part, "I have sent you all the paperwork that I have . . ." In view of the foregoing, I cannot find that defendant was served with this claim.
Pursuant to § 11 of the Act, claims must be served on the Attorney General, either personally or by certified mail, return receipt requested. Service is a jurisdictional prerequisite to the institution and maintenance of a claim against the state. See, e.g., Byrne v State of New York, 104 AD2d 782, 480 NYS2d 225 (2d Dept 1984), leave denied, 64 NY2d 607, 488 NYS2d 1023 (1985). Because of Barker's failure to serve defendant with his claim, this Court lacks jurisdiction. The claim of Stephen Barker is thus dismissed.
LET JUDGMENT BE ENTERED ACCORDINGLY.

August 28, 2000
New York, New York

HON. ALAN C. MARIN
Judge of the Court of Claims