New York State Court of Claims

New York State Court of Claims

TORRES v. STATE OF NEW YORK, #2002-018-152, Claim No. 100057


Synopsis


Claim dismissed for lack of jurisdiction pursuant to Court of Claims Act §11(2)(i)

Case Information

UID:
2002-018-152
Claimant(s):
HECTOR TORRES
Claimant short name:
TORRES
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
100057
Motion number(s):

Cross-motion number(s):

Judge:
DIANE L. FITZPATRICK
Claimant's attorney:
HECTOR TORRESPro Se
Defendant's attorney:
ELIOT SPITZER
Attorney General of the State of New York
By: Joel L. Marmelstein, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
July 17, 2002
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)

.
Decision
This claim was scheduled for trial on July 11, 2002, at the Watertown Correctional Facility. At that time, the assistant attorney general moved to dismiss the claim for failure to appropriately serve the claim. The claim itself has an affidavit of service by mail attached to it which indicates that the claimant served a true copy of the claim which was signed and notarized on March 23, 1999; however, it does not contain an address where the claim was sent or the date on which it was sent. The assistant attorney general submitted an affidavit by Carol A. McKay, Senior Clerk in the Albany Office of the Attorney General, in which the affiant stated that a search of the records revealed no claim was ever served upon the attorney general.

The Court gave claimant an opportunity to be heard on this matter and to provide proof of service upon the attorney general. It is claimant's burden to prove proper service, and in this case, claimant did not provide this proof. (
Wern v D'Alessandro, 219 AD2d 646.) Timely service of a claim upon the attorney general is a jurisdictional prerequisite to maintaining an action in this Court. (Court of Claims Act §11(a)(i); Finnerty v New York State Thruway Authority, 75 NY2d 721.) The Court granted the motion to dismiss the claim on the record based upon the Court's lack of jurisdiction to hear the matter. The claim is hereby DISMISSED. LET JUDGMENT BE ENTERED ACCORDINGLY.

July 17, 2002
Syracuse, New York

HON. DIANE L. FITZPATRICK
Judge of the Court of Claims