New York State Court of Claims

New York State Court of Claims

NEGRON v. THE STATE OF NEW YORK, #2003-031-018, Claim No. 106858, Motion Nos. M-66334, CM-66435


Synopsis


Claimant failed to serve claim upon Defendant. Defendant's cross-motion for dismissal of the claim granted. Claimant's motion for assignment of counsel denied as moot

Case Information

UID:
2003-031-018
Claimant(s):
ELVIS NEGRON
Claimant short name:
NEGRON
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
106858
Motion number(s):
M-66334
Cross-motion number(s):
CM-66435
Judge:
RENÉE FORGENSI MINARIK
Claimant's attorney:
ELVIS NEGRON, PRO SE
Defendant's attorney:
HON. ELIOT SPITZER
New York State Attorney General
BY: THOMAS G. RAMSAY, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
April 21, 2003
City:
Rochester
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)

.
Decision

The following papers, numbered 1 to 5, were read on motion by Claimant for assignment of counsel and cross-motion by Defendant for dismissal of the claim:
1) Claimant's Notice of Motion (M-66334), filed January 27, 2003;
2) Claimant's Affidavit, sworn to January 23, 2003;
3) Defendant's Notice of Cross-Motion (CM-66435), filed February 24, 2003;
  1. Affirmation of Thomas G. Ramsay, Esq., dated February 19, 2003;
  2. Affidavit of Carol A. McKay, sworn to February 14, 2003, with attached exhibits.Claimant has moved for the assignment of counsel to represent him in this matter. Defendant has filed a cross-motion, seeking dismissal of the claim.
In his claim, filed on October 31, 2002, Mr. Negron alleges that on July 29, 2002, while incarcerated at Attica Correctional Facility, he was physically and mentally abused and his leg was broken. Apparently, these acts were committed by correction officers employed by Defendant. Claimant seeks to recover the sum of $450,000.00 for the injuries he allegedly received.

Defendant has submitted the affidavit of Senior Clerk Carol A. McKay, which indicates that Claimant has failed to serve the claim upon the Attorney General. Defendant, therefore, seeks dismissal of the claim based upon Claimant's failure to serve the claim upon the Attorney General either by personal service, or by certified mail, return receipt requested, as required by Court of Claims Act § 11(a).

Claimant has not responded to the cross-motion and, therefore, Ms. McKay's assertions are undisputed.

Court of Claims Act § 11(a) provides, in relevant part, that a copy of the claim at issue "shall be served upon the attorney general. . . either personally or by certified mail, return receipt requested . . ." The requirements set forth in Court of Claims Act § 11(a) 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 is not free to disregard this requirement. "[D]iscretion, equity, or a harsh result may not temper application of a rule of law" (Martin v State of New York, 185 Misc 2d 799, 804).

By failing to effect service of the claim upon the Attorney General, Claimant has not met the literal requirements of Court of Claims Act § 11(a). The claim must, therefore, be dismissed.

Accordingly, for the reasons stated above, it is hereby

ORDERED, that Defendant's cross-motion for dismissal of the claim is granted and the claim is dismissed in its entirety. Claimant's motion for assignment of counsel is denied as moot. The Clerk is directed to close the file.

April 21, 2003
Rochester, New York

HON. RENÉE FORGENSI MINARIK
Judge of the Court of Claims