New York State Court of Claims

New York State Court of Claims

LEE v. THE STATE OF NEW YORK, #2002-005-514, Claim No. 104476, Motion No. M-64737


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

Case Information

EDDEIJAMES LEE, SR. (sic) The caption has been amended, sua sponte, to reflect the only proper defendant.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
The caption has been amended, sua sponte, to reflect the only proper defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant's attorney:
Eddie James Lee, Sr.,Pro Se
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Heather R. Rubinstein, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
March 13, 2002

Official citation:

Appellate results:

See also (multicaptioned case)


On March 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.

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 September 7, 2001, averring 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 reveals that the claim herein was filed on June 25, 2001, and was given Claim No. 104476, and is entitled "Filed a Claim ofviolation of my patient right under, the United States Patient Bill of Right.Art-6-11" [sic], and alleges the negligence of a nurse at Cayuga Correctional Facility on or about May 6, 2001, relating to an incident in which Claimant's blood was to be drawn.

The claim is dated June 11, 2001, and handwritten beneath the date is the notation that "Notice of Intention to file with the Attorney Generl Office on May 13, 2001" [sic]. Review of the court's file reveals no record or copy of a receipt for certified mail or a copy of the green return receipt card reflecting receipt by the Defendant of a Notice of Intention, and no affidavit or other proof of service is appended to the claim itself.

There is nothing in the Court's files reflecting service of the 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 of service of the claim itself as required by Court of Claims Act §11(a).

Claimant has not opposed the motion and has not accordingly refuted 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.

March 13, 2002
Rochester, New York

Judge of the Court of Claims