New York State Court of Claims

New York State Court of Claims

RODRIGUEZ v. THE STATE OF NEW YORK, #2002-005-519, Claim No. 101303, Motion No. M-64760


Synopsis


Defendant's motion to dismiss the claim is granted.

Case Information

UID:
2002-005-519
Claimant(s):
MAXIMO RODRIGUEZ
Claimant short name:
RODRIGUEZ
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
101303
Motion number(s):
M-64760
Cross-motion number(s):

Judge:
DONALD J. CORBETT, JR.
Claimant's attorney:
Maximo Rodriguez,
Pro Se
Defendant's attorney:
Eliot Spitzer, Attorney General
By: 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 4, were read on motion by Defendant for dismissal of the claim:

1, 2, 3 Notice of Motion, Affirmation, Affidavit and Exhibit 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 February 5, 2002, 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 October 27, 1999, and was given Claim No. 101303, is entitled Verified Claim, and alleges negligence of the Defendant relating to the confiscation of a Norelco beard trimmer at the Cayuga Correctional Facility on or about June 21, 1999, and or November 8, 1999.

The claim also asserts that a Notice of Intention to file a claim was filed with this court on September 15, 1999, although notices of intention to file a claim have not been accepted for filing since 1995 (L.1995, c. 466). 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 service of either the purported Notice of Intention or the claim itself upon the Defendant.

Thus, 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. 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. Accordingly, the trial of this claim scheduled for June 19, 2002 at Auburn Correctional Facility is canceled.


March 13, 2002
Rochester, New York

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