New York State Court of Claims

New York State Court of Claims

RAMOS v. STATE OF NEW YORK, #2004-018-314, Claim No. 105959, Motion No. M-68436


Claim is dismissed pursuant to Court of Claims Act §§ 10 and 11.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant's attorney:
Louis RamosPro Se
Defendant's attorney:
Attorney General of the State of New York
By: Timothy P. Mulvey, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
July 19, 2004

Official citation:

Appellate results:

See also (multicaptioned case)


Defendant brings this motion to dismiss the claim for lack of jurisdiction. Defendant

asserts that it was never served with a copy of the claim. In support of its position, Defendant submits the affirmation of Assistant Attorney General Timothy P. Mulvey and the affidavit of Carol A. McKay, Senior Clerk in the Albany Office of the Attorney General. Ms. McKay's duties require that she be familiar with the record keeping system in the Litigation Bureau/ Claims Practice Group of the Attorney General's office for notice of intentions and claims. A copy of a letter to Louis Ramos from the Court of Claims dated May 8, 2002, was received by the Attorney General's office according to Ms. McKay. That letter acknowledged receipt by the Court of a claim of Louis Ramos against the Department of Correctional Services. The Attorney General's office assigned the letter the reference number OAG#02-006868-O.

In the claim, filed with the Clerk of the Court of Claims on April 24, 2002, Claimant alleges that on March 9, 2002, at 7:30 p.m. in the E-2 Housing Unit at Cape Vincent Correctional Facility, he fell and hit his forehead on the edge of a large locker, the divider, and the floor when he tried to climb to the top bunk bed. An affidavit of service submitted with the claim indicates something was served upon the Law Department at the Capitol in Albany, New York. No date is noted, however, Claimant's signature was notarized on March 22, 2002.

Service of a claim upon the Attorney General according to Court of Claims Act § 11(a) must be by personal service or by certified mail return receipt requested. The requirements for proper service in the Court of Claims, as set forth in Court of Claims Act §§ 10 and 11, are jurisdictional prerequisites to commencing an action in this Court (Byrne v State of New York, 104 AD2d 782, 783, lv denied 64 NY2d 607). The failure to serve the Attorney General results in a failure of subject matter jurisdiction, which precludes this Court from hearing the claim (Finnerty v New York State Thruway Authority, 75 NY2d 721, 722; Nish v Town of Poestenkill, 179 AD2d 929, appeal dismissed 79 NY2d 1040).

The incomplete affidavit of service attached to the claim is not sufficient to defeat Defendant's proof of non-service of the claim (Hodge v State of New York, 158 Misc 2d 438, 440, affd 213 AD2d 766). Claimant has failed to meet his burden of coming forward with proof that service was completed in accordance with the requirements of Court of Claims Act § 11(a) (Wern v D'Alessandro, 219 AD2d 646). In fact, Claimant has not responded to the motion. Accordingly, Defendant's motion must be GRANTED and the claim DISMISSED.

July 19, 2004
Syracuse, New York

Judge of the Court of Claims

The Court has considered the following documents in deciding this motion:

Notice of Motion...................................................................................................1

Affirmation of Timothy P. Mulvey, Esquire, Assistant Attorney General

with exhibits attached................................................................................2

No response was received from the Claimant.