New York State Court of Claims

New York State Court of Claims

WALKER v. THE STATE OF NEW YORK, #2002-015-221, Claim No. 100728, Motion No. M-64235


Synopsis


Section 11 (a) (i) of the Court of Claims Act requires both filing of a claim and service upon the Attorney General either personally or by certified mail, return receipt requested. Failure to serve claim upon Attorney General deprives the Court of jurisdiction to adjudicate it and requires dismissal of the claim.

Case Information

UID:
2002-015-221
Claimant(s):
EDGAR WALKER
Claimant short name:
WALKER
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
100728
Motion number(s):
M-64235
Cross-motion number(s):

Judge:
FRANCIS T. COLLINS
Claimant's attorney:
Edgar Walker, Pro Se
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Timothy P. Mulvey, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
January 28, 2002
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The defendant's motion to dismiss for lack of jurisdiction on the basis that the claimant failed to serve a copy of the claim upon the Attorney General as required by Court of Claims Act § 11 (a) (i) is granted. The claim, filed with the Court on July 14, 1999 and assigned claim number 100728, alleges that the claimant was sexually harassed and assaulted by correction officers during the course of a search of his cell on April 20, 1999 at Mid-State Correctional Facility in Marcy, New York.

The claimant has failed to oppose the motion which includes the affidavit of Carol A. McKay, a Senior Clerk in the Albany Office of the Attorney General. Ms. McKay states the following:
a. The Office of the Attorney General of the State of New York, Claims Bureau, Albany Office, received a document entitled Notice of Intention to file a Claim of MR EDGAR WALKER against THE STATE OF NEW YORK, on February 1, 1999 by regular mail. This document was given the following reference number: OAG# 99-006078-O. A copy of this document is attached as Exhibit "A".

b. The Office of the Attorney General of the State of New York, Claims Bureau, Albany Office, has received a letter from the Court of Claims dated July 29, 1999 acknowledging receipt by the Court on July 14, 1999 of a Claim of EDGAR WALKER 97 R 7182 against THE STATE OF NEW YORK & ANO. This was given the reference number: OAG #99-006078-O. A copy of this document is attached as Exhibit "B".

b. [sic] Based on my review of the files in the Office of the Attorney General of the State of New York, Albany Claims Bureau, I find no record that the Claim in this matter was ever served on the Attorney General.
The notice of intention to file a claim received by the Attorney General on February 1, 1999 is attached to the motion papers as Exhibit "A" and pertains to the loss of certain of the claimant's personal property on December 9, 1998.

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."

The defendant has established that the claimant failed to serve a copy of the claim herein upon the Attorney General as required by Court of Claims Act § 11. Accordingly, the claim must be dismissed as the claimant has failed to meet the literal requirements of the Court of Claims Act relative to commencement of an action against the State of New York in the Court of Claims (Dreger v New York State Thruway Auth., supra, at 723).


January 28, 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 25, 2001;
  2. Affirmation of Timothy P. Mulvey dated October 25, 2001;
  3. Affidavit of Carol A. McKay sworn to October 19, 2001 with exhibits.