New York State Court of Claims

New York State Court of Claims

LEE v. STATE OF NEW YORK, #2002-005-512, Claim No. 101376, Motion No. M-64720


Synopsis


Defendant's motion for dismissal of the claim is granted.

Case Information

UID:
2002-005-512
Claimant(s):
EDDIE JAMES LEE, SR. The caption of the claim has been amended, sua sponte, to show the only proper defendant.
Claimant short name:
LEE
Footnote (claimant name) :

Defendant(s):
STATE OF NEW YORK
Footnote (defendant name) :
The caption of the claim has been amended, sua sponte, to show the only proper defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
101376
Motion number(s):
M-64720
Cross-motion number(s):

Judge:
DONALD J. CORBETT, JR.
Claimant's attorney:
Eddie James Lee, Sr.,
Pro Se
Defendant's attorney:
Eliot Spitzer, Attorney General
By: Timothy P. Mulvey, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
March 13, 2002
City:
Rochester
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision


On March 13, 2002, the following papers, numbered 1 to 5, 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: "Motion of Final Notice"
  2. Filed Papers: Claim
Upon the foregoing papers, this motion is granted.

Defendant seeks dismissal of the claim on jurisdictional grounds, alleging that no claim was ever served upon the Defendant and provides the affidavit of Carol A. McKay, a Senior Clerk in the Albany Office of the Attorney General, sworn to on February 7, 2002, averring under oath that a thorough search of the Defendant's files failed to find a record of any claim having been served. Ms. McKay avers under oath that a Notice of Intention to file a Claim was served upon the Defendant on November 18, 1999 (Exhibit A to the moving papers), alleging, inter alia, denial of medical treatment from 1996 to October 31, 1999, relating to injury to Claimant's left foot.

A review of the Court's file reflects a sworn affidavit of service, albeit only for service of the Notice of Intention to file a Claim, sworn to on November 2, 1999. Indeed the document served upon the Defendant on November 18, 1999 is denominated as a Notice of Intention to file a Claim, while the claim filed with the Clerk is denominated as a Claim. No answer is in the Clerk's file, further reflective of the 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).

Claimant's opposition ignores Defendant's assertions and does not refute the undisputed allegations that no claim in this matter has been served upon the Defendant. Accordingly, since the Claimant failed to serve the Defendant, and has not established that he did so, he failed to obtain jurisdiction of the Defendant, and the motion seeking dismissal of the claim is granted. The claim is dismissed and the trial of this claim scheduled for May 1, 2002 is canceled.


March 13, 2002
Rochester, New York

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