New York State Court of Claims

New York State Court of Claims

ROLLINS v. THE STATE OF NEW YORK, #2002-009-001, Claim No. 101811, Motion No. M-64472


Synopsis


Defendant's motion to dismiss the claim based upon the failure of claimant to serve his claim upon the Attorney General was granted.

Case Information

UID:
2002-009-001
Claimant(s):
RAYMOND ROLLINS The Court, sua sponte, has amended the caption to reflect the State of New York as the only proper defendant.
Claimant short name:
ROLLINS
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :
The Court, sua sponte, has amended the caption to reflect the State of New York as the only proper defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
101811
Motion number(s):
M-64472
Cross-motion number(s):

Judge:
NICHOLAS V. MIDEY, JR.
Claimant's attorney:
RAYMOND ROLLINS, Pro Se
Defendant's attorney:
HON. ELIOT SPITZER
Attorney General
BY: Gordon J. Cuffy, Esq.,
Assistant Attorney GeneralOf Counsel.
Third-party defendant's attorney:

Signature date:
January 22, 2002
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Defendant has brought this motion seeking an order dismissing the claim based upon a failure of the claimant to serve his claim upon the Attorney General.

The following papers were considered by the Court in connection with this motion:
Notice of Motion, Affirmation, Affidavit of Carol A. McKay, with Exhibit 1,2,3

Claimant has not submitted any papers in opposition to this motion, nor has he contacted the Court in any manner whatsoever regarding this motion.

By this motion, defendant seeks an order dismissing the claim on the basis that the claim, although filed with the Court, was never served upon the Attorney General. In support of its motion, defendant has attached the affidavit of Carol A. McKay, a Senior Clerk in the Albany office of the Attorney General. One of her duties requires that she maintain records of notices of intention to file claims and claims that are received in the office of the Attorney General. In her affidavit, Ms. McKay states that based upon her examination of the files in the office of the Attorney General, Albany Claims Bureau, she finds no record that the claim in this matter was ever served on the Attorney General.

The requirements for the commencement of an action in the Court of Claims are jurisdictional and the failure to properly file and serve a claim results in a fatal defect, which cannot be ignored or cured (Byrne v State of New York, 104 AD2d 782). Section 11(a) of the Court of Claims Act requires a claim to be served upon the Attorney General either personally or by certified mail, return receipt requested. In this case, defendant has established to the satisfaction of the Court that the claim was never served upon the Attorney General. Accordingly, the Court does not have jurisdiction of the claim, and it must be dismissed.

Therefore, it is

ORDERED, that Motion No. M-64472 is hereby GRANTED; and it is further

ORDERED, that Claim No. 101811 is hereby DISMISSED.


January 22, 2002
Syracuse, New York

HON. NICHOLAS V. MIDEY, JR.
Judge of the Court of Claims