New York State Court of Claims

New York State Court of Claims

MATHIS v. THE STATE OF NEW YORK, #2004-009-66, Claim No. 102059, Motion No. M-68813


Synopsis


Defendant's motion to dismiss the claim based upon claimant's alleged failure to serve the claim upon the Attorney General was denied based upon proof that such service had been made.

Case Information

UID:
2004-009-66
Claimant(s):
TERRY B. MATHIS
Claimant short name:
MATHIS
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
102059
Motion number(s):
M-68813
Cross-motion number(s):

Judge:
NICHOLAS V. MIDEY JR.
Claimant's attorney:
TERRY B. MATHIS, Pro Se
Defendant's attorney:
HON. ELIOT SPITZER
Attorney General
BY: G. Lawrence Dillon, Esq.,
Assistant Attorney GeneralOf Counsel.
Third-party defendant's attorney:

Signature date:
October 20, 2004
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

Defendant has brought this motion seeking an order dismissing the claim due to claimant's alleged failure to serve the Attorney General.

The following papers were considered by the Court in connection with this motion:
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 General.

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 No. 2000-015-044]).[1]

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 General.[2]

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 further

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.


October 20, 2004
Syracuse, New York

HON. NICHOLAS V. MIDEY JR.
Judge of the Court of Claims



[1]Unpublished decisions and selected orders of the Court of Claims are available via the Internet at
[2] The Court notes that the claim served upon the Attorney General on March 6, 2000 had been authorized by Judge Collins in another Decision and Order, which had dismissed a prior claim of claimant's, but had granted claimant late claim relief under Court of Claims Act § 10(6). (See Decision and Order dated February 1, 2000 to Claim No. 101211, Motion No. M-60710). The papers served with the claim may have contained a reference to the dismissed claim (Claim No. 101211) which might explain why Carol McKay could find no record of service of Claim No. 102059, as set forth in her affidavit.