New York State Court of Claims

New York State Court of Claims

BROWN v. SUPT. BRIAN FISCHER, #2004-010-020, Claim No. 107083


Synopsis



Case Information

UID:
2004-010-020
Claimant(s):
LEYTON BROWN It is noted that Supt. Brian Fischer is not a proper party defendant.
Claimant short name:
BROWN
Footnote (claimant name) :

Defendant(s):
SUPT. BRIAN FISCHER
Footnote (defendant name) :
It is noted that Supt. Brian Fischer is not a proper party defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
107083
Motion number(s):

Cross-motion number(s):

Judge:
Terry Jane Ruderman
Claimant's attorney:
LEYTON BROWNPro 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:
July 9, 2004
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision
Claim Number 107083 alleges damages for
claimant's loss of personal property during his incarceration at Sing Sing Correctional Facility.
At the commencement of trial,
defendant moved to dismiss the claim on the ground that claimant had failed to serve defendant with either a Notice of Intention to File a Claim or a Claim. Defendant submitted an affidavit of a clerk in the Claims Bureau of the New York City Office of the Attorney General (OAG) attesting that she had conducted a thorough search of the computer filing system of the OAG and found no record of service upon the OAG (Ex. A). Additionally, the clerk inquired of all Assistant Attorneys General in the New York City, Albany, Suffolk, Westchester and Dutchess County offices of the OAG as to whether they had received any documents relating to this claim and she did not receive any affirmative response (Ex. A). It is further noted that the claim filed with the Court has no accompanying affidavit of service. Claimant testified at trial that he sent the claim by regular mail to the OAG; he had no proof of mailing.
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 the dismissal of the claim" (
Welch v State of New York, 286 AD2d 496, 497-98).
Upon consideration of the evidence, including claimant's own testimony that he failed to comply with the strict requirements for service upon the
defendant, the Court granted defendant's motion to dismiss (Court of Claims Act §11).
LET JUDGMENT BE ENTERED DISMISSING CLAIM NO. 107083
.

July 9, 2004
White Plains, New York

HON. TERRY JANE RUDERMAN
Judge of the Court of Claims