New York State Court of Claims

New York State Court of Claims

LEE v. THE STATE OF NEW YORK, #2002-005-515, Claim No. 101328, Motion No. M-64736


Synopsis


Defendant's motion to dismiss the claim is granted.

Case Information

UID:
2002-005-515
Claimant(s):
EDDIE JAMES LEE, SR. The caption has been amended, sua sponte, to reflect the only proper defendant
Claimant short name:
LEE
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
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):
101328
Motion number(s):
M-64736
Cross-motion number(s):

Judge:
DONALD J. CORBETT, JR.
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
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" (sic)
  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 September 22, 1997 (Exhibit A to the moving papers), alleging, inter alia, injury related to an incident in the inmate mess hall at Auburn Correctional Facility on or about September 5, 1997, in which a chair allegedly broke and Claimant was allegedly injured.

A review of the court's file reveals a copy of a receipt for certified mail and a copy of the green return receipt card reflecting receipt on September 22, 1997, appended to the claim. This service comports with the document entitled Notice of Intention to file a Claim appended as Exhibit A to the moving papers. The claim itself was filed on October 29, 1999, and given Claim No. 101328, and is entitled "to File claim in court of injure Claimant is seek judgment" (sic).

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), as he did with the Notice of Intention with the green card reflecting service by certified mail, return receipt requested.

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 June 4, 2002 is canceled.


March 13, 2002
Rochester, New York

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