New York State Court of Claims

New York State Court of Claims

BURNS v. THE STATE OF NEW YORK, #2003-028-579, Claim No. 107282, Motion No. M-67234


Synopsis


Case Information

UID:
2003-028-579
Claimant(s):
PHILIP D. BURNS 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:
BURNS
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):
107282
Motion number(s):
M-67234
Cross-motion number(s):

Judge:
RICHARD E. SISE
Claimant's attorney:
PHILIP D. BURNS, 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:
November 3, 2003
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, signed on August 15, 2003 and filed on August 19, 2003

2. Letter from Claimant (Burns Letter) received September 8, 2003 with annexed Exhibit.

3. Affidavit of Carol A. McKay, with annexed Exhibit A, filed September 29, 2003 (McKay Affidavit)

On February 5, 2003, a claim was filed with the Court by Claimant seeking damages for items he had installed upon a motorcycle which was allegedly seized at the behest of the Department of Motor Vehicles. This claim was assigned Claim No. 107282.

On August 15, 2003, a review of the files 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. The Defendant has provided the affidavit of Carol McKay, which denies service of a Claim or Amended Claim on the Attorney General. The Claimant, by letter dated September 4, 2003, provided the Court with photocopies of the certified mailing return receipts (green cards) and stated that he had enclosed "proof of service to Defendant New York State Department of Motor Vehicles and New York State Attorney General's office" (Burns Letter).

Claimant's written statement is contrary to the attached green cards he submitted. The proof of service demonstrates that he served his Claim upon the Department of Motor Vehicles and the Court of Claims. Claimant appears to be under the mistaken impression that the Court and the Attorney General are one in the same.

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 claim on the Attorney General. Accordingly, Claim No. 107282 is hereby dismissed.



November 3, 2003
Albany, New York

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