New York State Court of Claims

New York State Court of Claims

LINEBERGER v. THE STATE OF NEW YORK, #2001-030-555, Claim No. 100596


Synopsis


Motion for poor person relief and appointment of counsel denied

Case Information

UID:
2001-030-555
Claimant(s):
CHARLES EDWARD LINEBERGER
Claimant short name:
LINEBERGER
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
100596
Motion number(s):

Cross-motion number(s):

Judge:
THOMAS H. SCUCCIMARRA
Claimant's attorney:
CHARLES EDWARD LINEBERGER, PRO SE
Defendant's attorney:
HON. ELIOT SPITZER, NEW YORK STATE ATTORNEY GENERAL By: ELYSE ANGELICO, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
November 27, 2001
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)

.
Decision
Charles Lineberger, the Claimant herein, alleges in Claim Number 100596 that the Defendant negligently failed to protect him from an assault by fellow inmates at Sing Sing Correctional Facility (hereafter Sing Sing). Trial of the matter was held at Sing Sing on October 19, 2001.

As an initial matter, Defendant made a motion to dismiss the claim based upon its eighth affirmative defense, a failure to properly serve the claim, pursuant to Court of Claims Act § 11. The claim was served on the Attorney General by regular mail, as established by Counsel's submission of an envelope showing that the enclosures were sent regular, not certified, mail.

The filing and service requirements contained in §§10 and 11 Court of Claims Act are jurisdictional in nature and must be strictly construed.
Finnerty v New York State Thruway Auth., 75 NY2d 721, 722-723 (1989). Service upon the Attorney General by ordinary mail is generally insufficient to acquire jurisdiction over the State, unless the State has failed to properly plead jurisdictional defenses or raise them by motion. Court of Claims Act §11(c); Edens v State of New York, 259 AD2d 729 (2d Dept. 1999); Philippe v State of New York, 248 AD2d 827 (3d Dept 1998). Additionally, the Claimant has the burden of establishing proper service. Boudreau v Ivanov, 154 AD2d 638, 639 (2d Dept. 1989).
Here, the State's Verified Answer pleaded this defense with particularity, preserving the issue for review. Accordingly, Defendant's motion, which was reserved on at the time of trial, is hereby granted and Claim Number 100596 is dismissed in its entirety.

Let Judgment be entered accordingly.

November 27, 2001
White Plains, New York

HON. THOMAS H. SCUCCIMARRA
Judge of the Court of Claims