New York State Court of Claims

New York State Court of Claims

NELSON v. THE STATE OF NEW YORK, #2003-009-33, Claim No. 100655, Motion No. M-66777


Synopsis


Defendant's motion to dismiss the claim for failure to serve the Attorney General was granted.

Case Information

UID:
2003-009-33
Claimant(s):
DENNIS NELSON
Claimant short name:
NELSON
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
100655
Motion number(s):
M-66777
Cross-motion number(s):

Judge:
NICHOLAS V. MIDEY JR.
Claimant's attorney:
DENNIS NELSON, Pro Se
Defendant's attorney:
HON. ELIOT SPITZER
Attorney General
BY: Heather R. Rubinstein, Esq.,
Assistant Attorney GeneralOf Counsel.
Third-party defendant's attorney:

Signature date:
July 29, 2003
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Defendant has brought this motion seeking an order dismissing the claim based upon a failure of the claimant to serve his claim upon the Attorney General.

The following papers were considered by the Court in connection with this motion:
Notice of Motion, Affirmation, with Exhibits 1,2


Filed Papers: Claim

Claimant has not submitted any papers in opposition to this motion, nor has he contacted the Court in any manner whatsoever regarding this motion.

In his filed claim, claimant seeks damages in the amount of $25,000.00, based on allegations of harassment, while claimant was incarcerated at Marcy Correctional Facility.

By this motion, defendant, seeks an order dismissing the claim on the basis that the claim, although filed with the Court, was never served upon the Attorney General. In support of its motion, defendant has attached the Affidavit of Carol A. McKay, a senior clerk in the Albany office of the Attorney General (see Exhibit 1). One of her duties requires that she maintain records of notices of intention to file claims and claims that are received in the office of the Attorney General. In her Affidavit, Ms. McKay states that based upon her examination of the files in the office of the Attorney General, Claims Practice Group, she finds no record that the claim in this matter was ever served on the Attorney General.[1]

The requirements for the commencement of an action in the Court of Claims are jurisdictional and the failure to properly file and serve a claim results in a fatal defect, which cannot be ignored or cured (Byrne v State of New York, 104 AD2d 782). Section 11(a) of the Court of Claims Act specifically requires a claim to be served upon the Attorney General either personally or by certified mail, return receipt requested. In this case, defendant has established to the satisfaction of the Court that the claim was never served upon the Attorney General. Accordingly, the Court does not have jurisdiction of the claim, and it must be dismissed.

Therefore, it is

ORDERED, that Motion No. M-66777 is hereby GRANTED; and it is further

ORDERED, that Claim No. 100655 is hereby DISMISSED.


July 29, 2003
Syracuse, New York

HON. NICHOLAS V. MIDEY JR.
Judge of the Court of Claims




[1] In her Affidavit, Ms. McKay makes reference to a notice of intention to file a claim from claimant which was received by the office of the Attorney General on November 17, 1999. This notice of intention makes reference to a potential claim for damages of $550,000.00, accruing at Attica Correctional Facility, and not to the allegations contained in the instant claim.