New York State Court of Claims

New York State Court of Claims

CAINES v. THE STATE OF NEW YORK, #2004-015-440, Claim No. 109151, Motion No. M-68952


Synopsis


Court dismissed claim for lack of jurisdiction based upon non-service of the claim upon the Attorney General. Claimant failed to oppose the motion.

Case Information

UID:
2004-015-440
Claimant(s):
RANDOLPH CAINES
Claimant short name:
CAINES
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
109151
Motion number(s):
M-68952
Cross-motion number(s):

Judge:
FRANCIS T. COLLINS
Claimant's attorney:
Goldin & Rivin, PLLCBy: No Appearance
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Paul F. Cagino, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
November 16, 2004
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The defendant's motion to dismiss the claim for lack of jurisdiction on the basis that the claimant failed to serve a copy of the claim upon the Attorney General as required by Court of Claims Act § 11 (a) (i) is granted. The claim filed with the Court on April 7, 2004 alleges that on January 12, 2004 claimant was injured while a passenger in a motor vehicle which was owned, leased or rented by the Department of Correctional Services (DOCS) and operated by a DOCS' employee in a negligent manner on State Route 37 in the Town of Hammond, St. Lawrence County.

The claimant has failed to oppose the motion which includes the affidavit of Carol A. McKay, a Senior Clerk in the Albany Office of the Attorney General. Ms. McKay inter alia states the following:
2. One of the duties of the above position requires that I be familiar with the record keeping system of the Litigation Bureau/Claims Practice Group of the Office of the Attorney General regarding notices of intention to file claims and claims that are filed in the Court of Claims or received in the Office of the Attorney General.

3. At the request of Paul F. Cagino, an Assistant Attorney General in the Litigation Bureau/Claims Practice Group, I have made a thorough search of the records of the Office of the Attorney General, Claims Bureau, Albany Office, and find as follows:

a. The Office of the Attorney General of the State of New York, Claims Practice Group, Albany Office, received a letter from the Court of Claims dated April 16, 2004 acknowledging receipt by the Court on April 7, 2004 of a Claim of RANDOLPH CAINES against NEW YORK STATE DEPARTMENT OF CORRECTIONAL SERVICES. This was given the reference number: OAG# 04-006042-O. A copy of this document is attached as Exhibit "A".

4. Based on my review of the files in the Office of the Attorney General of the State of New York, Albany Claims Practice Group, I find no record that the Claim in this matter was ever served on the Attorney General.

It is well established that the service and filing requirements of the Court of Claims Act are jurisdictional in nature. In Lichtenstein v State of New York, 93 NY2d 911, the Court of Appeals, quoting from its earlier decision in Dreger v New York State Thruway Auth., 81 NY2d 721, 724, stated: "[B]ecause suits against the State are allowed only by the State's waiver of sovereign immunity and in derogation of the common law, statutory requirements conditioning suit must be strictly construed."

The defendant has established that the claimant failed to serve a copy of the claim herein upon the Attorney General as required by Court of Claims Act § 11. Accordingly, the claim must be dismissed as the claimant has failed to meet the literal requirements of the Court of Claims Act relative to commencement of an action against the State of New York in the Court of Claims (Dreger v New York State Thruway Auth., supra, at 723).



November 16, 2004
Saratoga Springs, New York

HON. FRANCIS T. COLLINS
Judge of the Court of Claims


The Court considered the following papers:
  1. Notice of motion dated August 13, 2004;
  2. Affirmation of Paul F. Cagino dated August 13, 2004;
  3. Affidavit of Carol A. McKay sworn to August 3, 2004.