New York State Court of Claims

New York State Court of Claims

BECKER v. THE STATE OF NEW YORK, #2002-015-216, Claim No. 103881, Motion No. M-64142


Synopsis


Claim dismissed on uncontroverted proof that claimant never served a copy of the claim upon the Attorney General as required by Court of Claims Act § 11 (a) to confer jurisdiction on Court.

Case Information

UID:
2002-015-216
Claimant(s):
RICHARD BECKER
Claimant short name:
BECKER
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
103881
Motion number(s):
M-64142
Cross-motion number(s):

Judge:
FRANCIS T. COLLINS
Claimant's attorney:
Richard Becker, Pro Se
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Michele M. Walls, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
January 16, 2002
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

The defendant's motion to dismiss the instant claim for lack of jurisdiction on the basis that the claimant failed to timely serve a copy of the claim upon the Attorney General in a manner prescribed by section 11 (a) of the Court of Claims Act is granted. The instant claim was filed with the Court on February 26, 2001 and seeks to recover interest upon a worker's compensation claim paid to claimant sometime in the year 2000 for mental anguish and emotional upset [sic] related to the delay in payment.

This motion to dismiss the claim is premised upon the claimant's failure to serve a copy of the claim upon the Attorney General as required by section 11 (a) (i) of the Court of Claims Act. That section, in relevant part, provides:
The claim shall be filed with the clerk of the court; and, except in the case of a claim for the appropriation by the state of lands, a copy shall be served personally or by certified mail, return receipt requested, upon the attorney general within the times hereinbefore provided for filing with the clerk of the court. Any notice of intention shall be served personally or by certified mail, return receipt requested, upon the attorney general within the times hereinbefore provided for service upon the attorney general. Service by certified mail, return receipt requested, upon the attorney general shall not be complete until the claim or notice of intention is received in the office of the attorney general. Personal service upon the attorney general shall be made in the same manner as described in section three hundred seven of the civil practice law and rules.
On this motion the defendant has submitted the affidavit of Carol A. McKay, a Senior Clerk in the Albany Office of the Attorney General, which alleges that the affiant conducted a thorough search of the records of the Office of the Attorney General, Claims Bureau, Albany Office and can find no record of service of a claim in this matter upon the Attorney General. As set forth in defense counsel's affirmation, the absence of proof of a claim being served upon the Attorney General as required by the above quoted statute was made known to claimant during a teleconference held May 30, 2001 involving my law clerk, Assistant Attorney General Walls and the claimant. Claimant was directed at that time to provide the Court with proof of timely service of the claim upon the Attorney General and to provide a copy of such proof of service along with an additional copy of the claim to the Attorney General.

Despite the assertion to the contrary in his unsworn opposing papers, claimant has not provided proof of timely service of the claim upon the Attorney General as directed. The copy of the return receipt which is attached to his October 11, 2001 submission merely evidences that some unspecified document was received by the Office of the New York State Attorney General, Appeals and Opinions Bureau, on October 9, 2001. This receipt is not evidence of the statutorily required service of a claim upon the Attorney General.

It is well established that the service and filing requirements of the Court of Claims Act are jurisdictional in nature. In Lichtenstein v State of New York, 93 NY2d 911, the Court of Appeals, quoting from its earlier decision in Dreger v New York State Thruway Auth., 81 NY2d 721, 724, stated: "[B]ecause suits against the State are allowed only by the State's waiver of sovereign immunity and in derogation of the common law, statutory requirements conditioning suit must be strictly construed." Here the claimant has failed to demonstrate that a copy of his claim was, in fact, served upon the Attorney General as required by Court of Claims Act § 11 (a).

The instant claim is, accordingly, dismissed.


January 16, 2002
Saratoga Springs, New York

HON. FRANCIS T. COLLINS
Judge of the Court of Claims


The Court considered the following papers:
  1. Notice of motion dated October 1, 2001;
  2. Affirmation of Michele M. Walls dated October 1, 2001 with exhibits;
  3. Affidavit of Carol A. McKay sworn to October 1, 2001.
  4. Unsworn "Rebutal" of Richard Becker dated October 11, 2001