New York State Court of Claims

New York State Court of Claims

BECKER v. THE STATE OF NEW YORK, #2002-015-238, Claim No. 103881, Motion No. M-64565


Synopsis


Claimant's motion fashioned as one to extend time to respond but appearing to be a motion to strike defenses set forth in the answer denied as moot since motion's return date occurred subsequent to dismissal of claim for lack of jurisdiction stemming from claimant's failure to serve the claim upon the Attorney General.

Case Information

UID:
2002-015-238
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-64565
Cross-motion number(s):

Judge:
FRANCIS T. COLLINS
Claimant's attorney:
Richard Becker, Pro Se
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
Assistant Attorney GeneralNo Appearance
Third-party defendant's attorney:

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

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant's motion characterized as one for an "extension of time" but appearing to the Court to be a motion to strike defenses asserted in the defendant's answer and for appointment of counsel is denied as moot. The claim (No. 103881) to which this motion pertains was dismissed by decision and order filed January 23, 2002 for lack of jurisdiction due to claimant's failure to provide proof of service of the claim upon the Office of the Attorney General by either of the methods of service authorized by Court of Claims Act § 11 (a). Since the claim was dismissed and there is no other claim currently pending before this Court there is no legal basis for consideration of the instant motion. Except for pre-action disclosure motions pursuant to CPLR § 3102 (c) "a motion may only be made in a pending action" (Sciarabba v State of New York, 152 AD2d 229; cf., Hop Wah v State of New York, 137 Misc 2d 751).

The absence of a pending action precludes consideration of the motion addressed to defendant's answer.

Moreover, the pro se movant has failed to submit proof of service of the motion upon the Attorney General. The language included at the foot of movant's notice of motion under the heading "affidavit of service" is insufficient since it is not in affidavit form and is neither signed nor notarized.

The motion is, therefore, denied.


April 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 December 24, 2001;
  2. Unsworn "affidavit" of Richard Becker dated November 27, 2001.