New York State Court of Claims

New York State Court of Claims

ROCA v. THE STATE OF NEW YORK, #2003-031-073, Claim No. 104369, Motion No. M-67312


Synopsis


Claim dismissed for failure to effect service upon Defendant.

Case Information

UID:
2003-031-073
Claimant(s):
WILFREDO ROJO ROCA
Claimant short name:
ROCA
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
104369
Motion number(s):
M-67312
Cross-motion number(s):

Judge:
RENÉE FORGENSI MINARIK
Claimant's attorney:
WILFREDO ROJO ROCA, PRO SE
Defendant's attorney:
HON. ELIOT SPITZER
New York State Attorney General
BY: HEATHER R. RUBINSTEIN, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
October 7, 2003
City:
Rochester
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

In his claim filed on June 4, 2001, Mr. Roca alleges that, on February 1, 2001, while incarcerated at Five Points Correctional Facility, he was physically assaulted and issued a bogus inmate misbehavior report by correction officers employed by Defendant. Claimant seeks to recover the sum of $100,000.00 for the injuries he allegedly received in that incident. By Order to Show Cause, filed August 28, 2003, I directed the parties to submit documents relating to Claimant's apparent failure to comply with Section 11 of the Court of Claims Act in instituting this claim. In response to this order, Claimant submitted documents which demonstrate that he served a notice of intention to file a claim upon the Attorney General's Office on March 21 2001. Claimant submitted nothing that indicates that he served the claim upon the Attorney General. Defendant has submitted the affidavit of Carol A. McKay, sworn to September 18, 2003, with attached exhibits which, while admitting service of the notice of intention to file a claim, indicates that Claimant has failed to serve the claim upon the Attorney General.

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).

Although Claimant did properly serve his notice of intention to file a claim, with respect to the claim itself, 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 the claim is dismissed in its entirety. The Clerk is directed to close the file.

October 7, 2003
Rochester, New York

HON. RENÉE FORGENSI MINARIK
Judge of the Court of Claims