New York State Court of Claims

New York State Court of Claims

Holohan v. STATE OF NEW YORK, #2002-018-186, Claim No. 104789, Motion No. M-65585


Synopsis

Claim dismissed for lack of personal and subject matter jurisdiction.

Case Information

UID:
2002-018-186
Claimant(s):
EDWARD HOLOHAN
Claimant short name:
Holohan
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
104789
Motion number(s):
M-65585
Cross-motion number(s):

Judge:
DIANE L. FITZPATRICK
Claimant's attorney:
EDWARD HOLOHANPro 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:
November 22, 2002
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision
Defendant brings this motion to dismiss the claim for lack of personal and subject matter jurisdiction. Defendant asserts that it was never served with a copy of the claim. In support of its position, it submits the affirmation of Assistant Attorney General Joel L. Marmelstein and the affidavit of Carol A. McKay, Senior Clerk in the Albany Office of the Attorney General. Ms. McKay's duties require that she be familiar with the record keeping system in the Claims Bureau of the Attorney General's office for notices of intention and claims. The only documentation of this claim received by the Attorney General's office, according to Ms. McKay, was a letter from the Court of Claims dated September 7, 2001 advising that the claim of "Edward Holohan 00B3241 against NYS Department of Correctional Services" was received by the Court on August 24, 2001.

The claim, which claimant alleges accrued on August 6, 2001, seeks damages for loss of personal property. Claimant asserts in the claim, that it is being served and filed within 120 days of exhausting all administrative remedies. The claim was filed with the Court of Claims on August 24, 2001. There was no affidavit of service filed with the Clerk of the Court, as required by the Uniform Rules for the Court of Claims [22 NYCRR] §206.5(a).

Court of Claims Act §10(9) requires that a claim seeking damages for loss of personal property must be filed and served within 120 days after the date on which the inmate has exhausted the administrative remedies provided by the Department of Correctional Services for personal property claims. Service upon the Attorney General according to Court of Claims Act §11(a) must be by personal service or by certified mail return receipt requested.

The requirements in Court of Claims Act §§10 and 11 are jurisdictional prerequisites to commencing an action in this Court (
Byrne v State of New York, 104 AD2d 782, 783, lv denied 64 NY2d 607). The failure to serve the Attorney General results in a failure of subject matter jurisdiction, which precludes this Court from hearing the claim (Finnerty v New York State Thruway Authority, 75 NY2d 721, 722; Nish v Town of Poestenkill, 179 AD2d 929, appeal dismissed 79 NY2d 1040).
Since claimant has not come forward with any proof of service, and in fact has not responded to the motion, defendant's motion must be GRANTED and the claim DISMISSED.


November 22, 2002
Syracuse, New York

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


The Court considered the following documents in deciding this motion:

Notice of Motion..................................................................................1

Affirmation of Joel L. Marmelstein, Assistant Attorney General,

in support with all exhibits attached thereto.............................2


No response was submitted by claimant.


Filed Documents:


Claim......................................................................................................3