New York State Court of Claims

New York State Court of Claims

ARCE v. THE STATE OF NEW YORK, #2004-010-009, Claim No. 107192, Motion No. M-67921


Synopsis


Case Information

UID:
2004-010-009
Claimant(s):
JULIO ARCE
Claimant short name:
ARCE
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
107192
Motion number(s):
M-67921
Cross-motion number(s):

Judge:
Terry Jane Ruderman
Claimant's attorney:
JULIO ARCEPro Se
Defendant's attorney:
HON. ELIOT SPITZER
Attorney General for the State of New YorkBy: Elyse Angelico, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
March 17, 2004
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers numbered 1-4 were read and considered by the Court on defendant's motion to dismiss:
Notice of Motion, Attorney's Supporting Affirmation and Exhibits........................1

Claimant's Affidavit and Exhibit...............................................................................2

Claimant's Notice of Motion, Motion to Amend, Affidavit/Affirmation................3

Claimant's Request for Findings and Facts...............................................................4

Defendant moves to dismiss the claim, pursuant to CPLR 3211(a)(8), for lack of personal jurisdiction.

On March 26, 2003, defendant was served by regular mail, with a motion for leave to file a late claim and a copy of a claim[1] (Defendant's Ex. A). Defendant served an answer to the claim and raised the affirmative defense of lack of jurisdiction based upon claimant's service by regular mail rather than personal service or certified mail, return receipt requested as required by Court of Claims Act § 11 (Defendant's Ex. D, ¶ 13). By Decision and Order, Hon. Thomas H. Scuccimarra, file stamped August 4, 2003, claimant's late claim application was denied (Defendant's Ex. 2).

In support of the motion to dismiss, defendant submits the affidavit of the senior clerk of the Claim's Bureau indicating that a thorough search was made and there is no record of a claim served upon defendant (Defendant's Ex. 3).

The provisions of Court of Claims Act § 10 and § 11 are to be strictly construed and failure to comply with the service provisions "is a jurisdictional defect compelling dismissal of the claim" (Welch v State of New York, 286 AD2d 496, 498).

Accordingly, defendant's motion to dismiss Claim No. 107192 is GRANTED.

March 17, 2004
White Plains, New York

HON. TERRY JANE RUDERMAN
Judge of the Court of Claims





[1] Claim No. 107192, filed with the Court, refers to the same incident and is substantially the same as the proposed claim served with the motion for leave to file a late claim. To the extent that claimant again seeks leave to file a late claim, that motion is DENIED, as well as all other relief sought by claimant.