New York State Court of Claims

New York State Court of Claims

EXCELL v. UPSTATE CORRECTIONAL FACILITY, #2002-011-537, Claim No. 101780, Motion No. M-64905


Synopsis


Defendant's request to dismiss the claim on the ground that it was not served is granted.

Case Information

UID:
2002-011-537
Claimant(s):
MORTIMER EXCELL, 96 R 8355
Claimant short name:
EXCELL
Footnote (claimant name) :

Defendant(s):
UPSTATE CORRECTIONAL FACILITY
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
101780
Motion number(s):
M-64905
Cross-motion number(s):

Judge:
THOMAS J. McNAMARA
Claimant's attorney:
Mortimer Excell, Pro Se
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Glenn C. King, Esq., Assistant Attorney General
Third-party defendant's attorney:

Signature date:
May 15, 2002
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision


Defendant has moved to dismiss the claim on the ground that it was not served. In an affidavit by Carol McKay, a senior clerk in the Attorney General's office, she avers that she is familiar with the record keeping system of that office as it concerns claims against the State. She also states that she made a thorough search of the records and found only a letter from this court to Claimant acknowledging receipt of the claim. She did not find any record of the claim in this matter. In addition, Claimant did not file an affidavit of service with the court as required by §206.5 of the Uniform Rules for the Court of Claims and has not opposed the motion.

Based upon the affidavit by Ms. McKay and in the absence of an affidavit of service, the court concludes that the claim was not served as required by the Court of Claims Act §11. Accordingly, the court is without jurisdiction. The motion is granted and the claim is dismissed.


May 15, 2002
Saratoga Springs, New York

HON. THOMAS J. MCNAMARA
Judge of the Court of Claims



Papers Submitted:

  1. Notice of Motion to Dismiss dated March 21, 2002
  2. Affirmation in Support of Glenn C. King, Esq. dated March 21, 2002 with exhibit annexed
  3. Affidavit of Carol A. McKay sworn to the 19th day of March, 2002 with exhibit annexed