New York State Court of Claims

New York State Court of Claims

BAKER v. THE STATE OF NEW YORK, #2003-031-068, Claim No. 105973, Motion No. M-67238


Synopsis


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

Case Information

UID:
2003-031-068
Claimant(s):
SHAWN BAKER
Claimant short name:
BAKER
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
105973
Motion number(s):
M-67238
Cross-motion number(s):

Judge:
RENÉE FORGENSI MINARIK
Claimant's attorney:
SHAWN BAKER, 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 27, 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) Notice of Motion, filed August 13, 2003;
  1. Affirmation of Thomas G. Ramsay, Esq., dated August 11, 2003;
  2. Affidavit of Carol A. McKay, sworn to August 11, 2003, with attached exhibits.
Upon the foregoing papers, Defendant's motion is granted. In his claim filed on April 25, 2002, Mr. Baker alleges that, on September 25, 2001, while incarcerated at Attica Correctional Facility, he was physically assaulted by another inmate and subsequently intimidated by correction officers into not reporting the incident.

Defendant seeks dismissal of the claim based upon Claimant's failure to serve the claim upon the Attorney General as required by Court of Claims Act § 11(a). Defendant has submitted the affidavit of Senior Clerk Carol McKay, 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 27, 2003
Rochester, New York

HON. RENÉE FORGENSI MINARIK
Judge of the Court of Claims