New York State Court of Claims

New York State Court of Claims

DAVID v. THE STATE OF NEW YORK, #2004-019-504, Claim No. 107588, Motion Nos. M-67581, M-67713


Case Information

CHARLES C. DAVID, JR. The Court has sua sponte amended the caption to reflect the State of New York as the only proper defendant.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
The Court has sua sponte amended the caption to reflect the State of New York as the only proper defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
M-67581, M-67713
Cross-motion number(s):

Claimant's attorney:
Defendant's attorney:
HON. ELIOT SPITZER, ATTORNEY GENERALBY: James E. Shoemaker, Assistant Attorney General, of counsel
Third-party defendant's attorney:

Signature date:
January 13, 2004

Official citation:

Appellate results:

See also (multicaptioned case)


By an Order to Show Cause filed in the Office of the Clerk on November 28, 2003, this court, sua sponte, directed both parties to submit written statements and any relevant proof to establish whether claimant served this claim upon the Office of the Attorney General within ninety days of the accrual of the claim or served upon the Office of the Attorney General a notice of intention within said ninety day period in accordance with the requirements of Court of Claims Act (hereinafter "CCA") 10 and 11.

In the underlying claim, claimant alleges he was falsely arrested on February 20, 2003 pursuant to a warrant issued on February 19, 2003. (Claim, ¶ ¶ 2 & 3). The claim was filed in the Office of the Clerk of the Court on April 8, 2003. On October 29, 2003, claimant filed a motion seeking to compel discovery which was assigned Motion No. M-67581. In opposition to claimant's discovery motion, the State indicated "upon information and belief, no claim was ever served on the Office of the Attorney General." (Affirmation of James E. Shoemaker, AAG, ¶ 4). Based upon the State's representation, this court issued the above-referenced Order to Show Cause.

In response to the Order to Show Cause, the State submits an affidavit from Carol A. McKay, a senior clerk in the Attorney General's Albany office who avers that: "[b]ased 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." (Affidavit of Carol A. McKay, ¶ 4).

As such, it was claimant's burden to come forward with proof establishing proper and timely service in compliance with CCA 10 & 11. (Commack Self-Serv. Kosher Meats v State of New York, 270 AD2d 687). Claimant, however, has failed to respond to the Order to Show Cause. The court notes that the Order to Show Cause was mailed to claimant on November 28, 2003 at his last known address at Willard DTC, Box 303, 7116 County Rte. 132, Willard, NY 14588, but was returned to the court by said facility with the notation that claimant had been released. The court has not received any written notification of a change in claimant's address and it was claimant's obligation to so notify the court. (22 NYCRR § 206.6 [f]).

It is a fundamental principle of practice in the court of claims that the filing and service requirements contained in CCA 10 and 11 are jurisdictional in nature and must be strictly construed. (Finnerty v New York State Thruway Auth., 75 NY2d 721, 722-723). Based upon this record, the court finds that claimant did not serve a claim on the Office of the Attorney General, let alone achieve such service within ninety days after accrual. The court is without discretion to waive these requirements and, as such, this claim must be dismissed.

Accordingly, for the reasons stated above, it is ORDERED that in response to the court's Order to Show Cause, Motion No. M-67713, that Claim No. 107588 is DISMISSED; and that claimant's discovery motion, Motion No. M-67581 is DENIED as moot.

January 13, 2004
Binghamton, New York

Judge of the Court of Claims