New York State Court of Claims

New York State Court of Claims

COLES v. THE STATE OF NEW YORK, #2003-031-066, Claim No. 105895, Motion No. M-67202


Synopsis


Claimant failed to serve claim upon Defendant. Defendant's motion for dismissal of the claim granted.

Case Information

UID:
2003-031-066
Claimant(s):
SHABAR COLES
Claimant short name:
COLES
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
105895
Motion number(s):
M-67202
Cross-motion number(s):

Judge:
RENÉE FORGENSI MINARIK
Claimant's attorney:
SHABAR COLES, 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:
August 21, 2003
City:
Rochester
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers, numbered 1 to 3, were read on motion by Defendant for dismissal of the claim:
1) Defendant's Notice of Motion, filed July 30, 2003;
2) Affirmation of Thomas G. Ramsay, Esq., dated July 28, 2003;
  1. Affidavit of Carol A. McKay, sworn to June 26, 2003, with attached exhibit.Upon the foregoing papers, Defendant's motion is granted.
With this motion, Defendant seeks dismissal of the claim based upon Claimant's failure to serve his claim upon the Attorney General as required by Court of Claims Act § 11(a). Defendant has submitted the affidavit of Carol A. McKay, a Senior Clerk in the Litigation Bureau of the Office of the Attorney General, which indicates that Claimant has failed to serve the claim upon the Attorney General.

Claimant has not responded to Defendant's 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 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 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).

Claimant has failed to meet the literal requirements of Court of Claims Act § 11. Claimant failed to effect service of the claim upon the Attorney General and the claim must, therefore, be dismissed

Accordingly, for the reasons stated above, it is hereby

ORDERED, that Defendant's motion for dismissal of the claim is granted and the claim is dismissed in its entirety. The Clerk is directed to close the file.

August 21, 2003
Rochester, New York

HON. RENÉE FORGENSI MINARIK
Judge of the Court of Claims