Motion to Dismiss Claim, Affirmation, with Exhibits (Including the Affidavit of
Carol A. McKay as Exhibit B) 1,2
Filed Papers: Claim; Decision and Order to Motion No. M-61437
This claim was scheduled by this Court for trial at Marcy Correctional Facility
on August 12, 2004. Prior to that date, defendant instituted the
instant motion, which, if granted, would be dispositive of the claim. The Court
therefore adjourned the trial, pending its consideration of this motion.
In this motion, defendant seeks to dismiss the claim, contending that it is
jurisdictionally defective due to claimant's alleged failure to serve his claim
upon the Office of the Attorney General as required by Court of Claims Act
§ 11(a). In support, defendant has submitted the Affidavit of Carol A.
McKay, a Senior Clerk in the Albany office of the Attorney General, who states
that following a thorough search of the records maintained by the Attorney
General, there is no record that this claim was ever served on the Attorney
In consideration of this motion, however, the Court reviewed a prior decision
and order by my esteemed colleague, Hon. Francis T. Collins (Mathis v State
of New York
, Ct Cl, June 28, 2000, Claim No. 102059, Motion No. M-61437 [UID
In that decision and order, Judge Collins denied a motion of the defendant
which sought dismissal of the claim on the basis that claimant had failed to
exhaust administrative remedies pursuant to Court of Claims Act § 10(9).
In his affirmation in support of that motion, however, the Assistant Attorney
General representing the State at that time specifically stated that "[o]n
March 6, 2000, claimant served a Claim upon the Attorney General". A
copy of that claim was attached as Exhibit A to defendant's moving papers in
that motion. The Court has compared that copy to the claim which was filed with
the Clerk of the Court and finds them to be identical.
Based on the foregoing, therefore, the Court finds that the defendant has
admitted service of the claim upon the Attorney
Accordingly, it is
ORDERED, that Motion No. M-68813 is hereby DENIED; and it is further
ORDERED, that defendant shall have 30 days from the filing date of this
decision and order to serve and file its answer to this claim; and it is
ORDERED, that the trial of this claim will be scheduled for this Court's next
available trial term to be conducted at Marcy Correctional Facility.