New York State Court of Claims

New York State Court of Claims

BROWN v. THE STATE OF NEW YORK, #2002-028-031, Claim No. 105359, Motion No. M-65070


Synopsis


Court's Order to Show Cause - Court directed parties to address Claimant's apparent failure to comply with the service requirements of Court of Claims Act section 11. Defendant established no service. Claims dismissed.


Case Information

UID:
2002-028-031
Claimant(s):
ANTHONY L. BROWN The caption of this action is amended sua sponte to reflect the State of New York as the only properly named defendant.
Claimant short name:
BROWN
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :
The caption of this action is amended sua sponte to reflect the State of New York as the only properly named defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
105359
Motion number(s):
M-65070
Cross-motion number(s):

Judge:
RICHARD E. SISE
Claimant's attorney:
ANTHONY L. BROWN, pro se
Defendant's attorney:
HON. ELIOT SPITZER, ATTORNEY GENERAL
BY: Eileen E. Bryant, Esq. Assistant Attorney General
Third-party defendant's attorney:

Signature date:
June 3, 2002
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

The following papers were read on the Court's motion, brought on by Order to Show Cause, for clarification from the parties regarding service of this claim.

1. Order to Show Cause, filed on April 22, 2002;

2. Affidavit of Carol A. McKay, sworn to on the 9th day of May, 2002 with annexed
Exhibit A (McKay Affidavit)

3. Affidavit of claimant: none received.

4. Filed papers: Claim, filed December 17, 2001. [1]


On December 17, 2001, a claim was filed with the Court alleging, inter alia, wrongful confinement and was assigned Claim No. 105359.

On February 1, 2002, a review of the file revealed that defendant had never filed an

answer to the claim and, consequently, the Court issued an Order to Show Cause directing both parties to provide statements relating to service of this claim. Responding for defendant, Carol A. McKay, Senior Clerk in the Albany office of the Attorney General, conducted a search of the records of that office and submitted an affidavit regarding the claim number identified in the Order to Show Cause.

Ms. McKay states that the Attorney General received a copy of a letter from the Court of Claims dated January 4, 2002 (McKay Affidavit, Exhibit A) advising that a claim, assigned Claim No.105359, had been filed with the Court on December 17, 2001. Ms. McKay further stated that in her review of the Department of Law files she found no record that a claim was ever served upon the Attorney General.

Claimant has submitted no written statement and provided no proof of service in response to the Court's Order to Show Cause with regard to this claim.

Court of Claims Act § 11 (a) provides, in relevant part, that a copy of the claim at issue "shall be served personally or by certified mail, return receipt requested, upon the attorney general." The requirements set forth in Court of Claims Act § 11 are jurisdictional in nature and, as such, must be strictly construed (see, Finnerty v New York State Thruway Auth., 75 NY2d 721, 722; Commack Self-Serv. Kosher Meats v State of New York, 270 AD2d 687).

The Court finds that claimant failed to comply with the requirements of Court of Claims Act § 11(a) in that he failed to serve a copy of the filed claim on the Attorney General. Accordingly, Claim No. 105359 is hereby dismissed.

June 3, 2002
Albany, New York

HON. RICHARD E. SISE
Judge of the Court of Claims




[1] Pursuant to Rule 206.5(a) of the Uniform Rules for the Court of Claims proof of service is to be filed within ten days of service upon the defendant. The Court's file does not contain proof of service of the claim.