New York State Court of Claims

New York State Court of Claims

HATCHER v. THE STATE OF NEW YORK, #2002-005-503, Claim No. 99714, Motion No. M-64527


Synopsis


Defendant's motion for dismissal of the claim for the failure to serve the claim on the Defendant is granted.

Case Information

UID:
2002-005-503
Claimant(s):
ANTOINE HATCHER
Claimant short name:
HATCHER
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
99714
Motion number(s):
M-64527
Cross-motion number(s):

Judge:
DONALD J. CORBETT, JR.
Claimant's attorney:
Antoine Hatcher,Pro Se
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Timothy P. Mulvey, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
February 15, 2002
City:
Rochester
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

On February 13, 2002, the following papers, numbered 1 to 4, were read on motion by Defendant for dismissal of the claim:

1, 2, 3 Notice of Motion, Affirmation, Affidavit and Exhibits Annexed
  1. Opposing Papers
  1. Filed Papers: Claim
Upon the foregoing papers, this motion is granted.

In this motion the Defendant seeks dismissal of the claim on jurisdictional grounds, alleging that no claim was ever served upon the Defendant. The claim was filed on January 28, 1999. Carol A. McKay is a Senior Clerk who maintains records of notices of intention to file claims and claims that are received in the office of the Attorney General, and in an affidavit sworn to on December 20, 2001, avers under oath that a thorough search of the Defendant's files failed to find a record of any claim having been served.

A review of the court's file reflects a sworn affidavit of service, dated January 4, 1999, but swears to service of a Notice of Intention to file a claim, not a claim The Defendant has provided copies of two Notices of Intention dated August 13, 1998, one received on September 4, 1998, and the other on September 18, 1998 (Exhibits A and B). While there is a copy of a letter sent by the Clerk of the Court reflecting filing of the claim (Exhibit C), Carol McKay swears under oath that no record of any claim having been served exists in the Defendant's files. Additionally, no answer is in the file, further reflective of the Claimant's failure to have served the claim.

Since issue was never joined, the presentation of the jurisdictional defenses in Court of Claims Act §11(c) are not implicated. Furthermore, Claimant has failed to refute the allegations of non-service and has not provided any proof, in particular, the green card reflecting service by certified mail, return receipt requested, as required by Court of Claims Act §11(a). Indeed, the Claimant has defaulted on this motion, and has not communicated with the Court with respect to the pending motion.

The requirements for the commencement of an action in the Court of Claims are jurisdictional and the failure to properly file and serve a claim results in a fatal defect which cannot be ignored or cured (Byrne v State of New York, 104 AD2d 782). Section 11(a) of the Court of Claims Act requires a claim to be served upon the Attorney General either personally or by certified mail, return receipt requested. Defendant has established without refutation that the claim was never served upon the Attorney General, and thus the Court does not have jurisdiction of the claim.

Accordingly, the motion is granted and the claim is dismissed.


February 15, 2002
Rochester, New York

HON. DONALD J. CORBETT, JR.
Judge of the Court of Claims