New York State Court of Claims

New York State Court of Claims

GEORGES v. THE STATE OF NEW YORK, #2002-015-284, Claim No. 103613, Motion No. M-65071


Inmate claim seeking damages stemming from inmate assault dismissed for failure to properly commence action where proof demonstrated that Attorney General was never served with copy of the claim.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant's attorney:
George Georges, Pro SeNo Appearance
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Eileen Bryant, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
August 13, 2002
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


Defendant's motion to dismiss the claim for lack of jurisdiction is granted. The instant claim filed on January 2, 2001 seeks to recover for the loss of claimant's personal property on July 18, 2000 while incarcerated at Greene Correctional Facility in Coxsackie, New York. On that date at approximately 7:20 p.m. claimant was involved in an altercation with another inmate and as a result was removed from his dormitory to the facility's special housing unit (SHU). Claimant's property allegedly disappeared upon his confinement in the SHU. The claim alleges that a facility claim was submitted to the steward's office but does not state the first stage disposition of such administrative claim or if any appeal was taken and decided prior to the filing of the instant claim.

After the instant claim was filed claimant was released from custody by the Department of Correctional Services (DOCS). The claim was scheduled for an out-of-custody calendar call on February 21, 2002 at the Justice Building in Albany, New York and thereafter, by order of Presiding Judge Susan Phillips Read dated March 14, 2002, was transferred to my chambers. By letter dated April 1, 2002 the court set the matter for trial on June 6, 2002 in Albany, New York.

In response to the trial notice the State moved to dismiss the claim on the grounds that the Attorney General had never been served with the claim as required by Court of Claims Act § 11 (a) (i) and that the Court therefore lacked jurisdiction to adjudicate the claim. It appears from the affidavit of service attached to the motion that a copy of the motion papers was served upon the claimant on April 22, 2002 at his last known address i.e., 2 Sea Crest Drive, Hampton Bays, New York 11946. Claimant did not respond to the motion nor did he appear for the scheduled trial.

The papers submitted on the motion including the affidavit of Carol A. McKay, a senior clerk employed by the Attorney General at the Claims Bureau, Albany Office, indicate that the instant claim was never served upon the Attorney General by any method of service whatsoever.

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 for claimant's failure 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).

August 13, 2002
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
  1. Notice of motion dated April 22, 2002;
  2. Affirmation of Eileen E. Bryant dated April 22, 2002;
  3. Affidavit of Carol A. McKay dated April 17, 2002 with exhibits