New York State Court of Claims

New York State Court of Claims

BANKS v. THE STATE OF NEW YORK, #2002-032-037, Claim No. 106564, Motion No. M-66211


Synopsis


Improperly served claim is dismissed, despite the fact that claimant did not receive motion papers, where claimant failed to keep the Court informed of his new address.


Case Information

UID:
2002-032-037
Claimant(s):
STEVEN MALIK BANKS/JAMES MALIK PAGE
Claimant short name:
BANKS
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
106564
Motion number(s):
M-66211
Cross-motion number(s):

Judge:
JUDITH A. HARD
Claimant's attorney:
Steven Malik Banks/James Malik Page, Pro Se
Defendant's attorney:
Hon. Eliot Spitzer, NYS Attorney General
By: Belinda A. Wagner, Esq., Assistant Attorney General,Of Counsel
Third-party defendant's attorney:

Signature date:
May 1, 2001
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

xxx

This claim is based on allegations that, in June 2000 at Franklin Correctional Facility, claimant was required to take medication for tuberculosis despite the fact that he did not have the disease. He maintains that the State was negligent in failing to first obtain a chest x-ray and carry out other appropriate diagnostic procedures.
In lieu of serving an answer, defendant has moved for dismissal of the claim on the ground, among others, that the claim was improperly served. In support of this portion of the motion, counsel for defendant has submitted a photocopy of the envelope in which the claim was received (Wagner affirmation, Exhibit A), establishing that it was sent by regular mail, rather than by certified mail, return receipt requested as required by section 11(a) of the Court of Claims Act.
Failure to comply with the time or manner of service requirements contained in sections 10 and 11 of the Court of Claims Act is a fatal jurisdictional defect, and if properly raised by defendant in its answer or in a pre-answer motion, deprives this Court of the power to hear the claim (Dreger v New York State Thruway Auth., 81 NY2d 721, 724; Bogel v State of New York, 175 AD2d 493).

Claimant has made no submission in opposition to the motion, and it appears that he was never served with a copy of the motion papers. The papers were twice returned to defense counsel, the first time because he had moved to another facility within the State prison system and the second time because he had been released on parole. Claimant's release occurred 32 days after his claim was filed, before expiration of the State's time to answer or serve a pre-answer motion (22 NYCRR §206.7 [responsive pleadings are to be served within 40 days after service of the pleading to which it responds]). Claimant has never provided a forwarding address to either the Department of Correctional Services (Document No. 2, attachment) or to the Court of Claims. Failure to keep the Court informed of his current address is a violation of 22 NYCRR §206.6(f) [changes in the address or telephone number of attorneys or pro se claimants is to be communicated in writing to the Chief Clerk within 10 days]). The Court also questions whether, in view of the irrefutable proof of the improper manner in which the claim was served, it would have been possible for claimant to effectively oppose this motion.

Defendant's motion is granted on the ground that Claim No. 106564 was not properly served, and the claim is dismissed.



May 1, 2001
Albany, New York

HON. JUDITH A. HARD
Judge of the Court of Claims


The following papers were read on defendant's motion for an order of dismissal
1. Notice of Motion and Supporting Affirmation of Belinda A. Wagner, Esq., AAG, with annexed Exhibit

Affirmation in Opposition (none received)

2. Defendant's letter relating to service

Filed papers: Claim