New York State Court of Claims

New York State Court of Claims

VALLE v. STATE OF NEW YORK, #2002-005-524, Claim No. 102408, Motion No. M-64696


Synopsis


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

Case Information

UID:
2002-005-524
Claimant(s):
JAIME VALLE
Claimant short name:
VALLE
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
102408
Motion number(s):
M-64696
Cross-motion number(s):

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

Signature date:
March 18, 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 Decedent for dismissal of the claim:

1, 2, 3 Notice of Motion, Affirmation, Affidavit and Exhibits Annexed
  1. Opposing Papers
4, 5 Filed Papers: Claim, Order in Motion No. M-63232

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 4, 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 August 9, 1999 (Exhibit A to the moving papers), alleging, inter alia, the loss of personal property in an incident at the Auburn Correctional Facility on or about May 9, 1999.

A review of the court's file reveals a copy of the claim, which contains a reference and copies of the Notice of Intention and service thereof. The document served upon the Defendant is clearly denominated as a Notice of Intention to file a Claim. The claim itself was filed on May 4, 2000, and given Claim No. 102408, and is clearly denominated as a claim. There is an affidavit of service, alleging service by certified mail, return receipt requested. However, the court's file does not contain any proof of service (22 NYCRR §206.5[a]).

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). The Defendant does acknowledge service of the Notice of Intention to file a claim by certified mail, return receipt requested, but denies service of any claim thereafter. Furthermore, I alluded to this very question in my Decision and Order in Motion No. M-63232, filed on June 29, 2001.

Claimant has defaulted on this 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. The claim is dismissed and the trial of this claim scheduled for May 1, 2002, at Auburn Correctional Facility is canceled.


March 18, 2002
Rochester, New York

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