New York State Court of Claims

New York State Court of Claims

FEASTER v. THE STATE OF NEW YORK, #2004-019-516, Claim No. 96918, Motion Nos. M-67915, CM-67959


Synopsis


Case Information

UID:
2004-019-516
Claimant(s):
CHRIS FEASTER, #90-A-7657 The Court has sua sponte amended the caption to reflect the State of New York as the only proper defendant.
Claimant short name:
FEASTER
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
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):
96918
Motion number(s):
M-67915
Cross-motion number(s):
CM-67959
Judge:
FERRIS D. LEBOUS
Claimant's attorney:
CHRIS FEASTER, PRO SE
Defendant's attorney:
HON. ELIOT SPITZER, ATTORNEY GENERALBY: Carol A. Cocchiola, Assistant Attorney General, of counsel
Third-party defendant's attorney:

Signature date:
February 5, 2004
City:
Binghamton
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant, an inmate appearing pro se, moves for the assignment of counsel pursuant to CPLR 1101. The State of New York (hereinafter "State") cross-moves for an order dismissing this claim pursuant to Court of Claims Act (hereinafter "CCA") 10 and 11 on the ground the claim has never been served upon the Office of the Attorney General. The court has not received any papers in opposition by or on behalf of claimant. This matter is scheduled for trial on February 17, 2004 at Elmira Correctional Facility.

This claim arises from an incident occurring on May 3, 1997 when claimant was allegedly stabbed in the chest with a knife by another inmate at the Elmira Correctional Facility. The claim was filed with the Clerk of the Court on September 8, 1997. There is no affidavit of service attached to the claim or contained in the court's file. (22 NYCRR 206.5). The claim itself recites that a notice of intention was served on the Office of the Attorney General on July 9, 1997. (Claim, ¶ 5).

The court will address the State's cross-motion first since it is dispositive of this matter. By way of this motion the State cross-moves for dismissal on the grounds this court lacks jurisdiction because the claim was never served on the Office of the Attorney General pursuant to CCA 10 and 11. The State submits an affidavit from Carol A. McKay, a senior clerk in the Attorney General's office who avers that: "[b]ased upon 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).


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). Claimant has failed to come forward to establish proper service of this claim which is his burden. (Commack Self-Serv. Kosher Meats v State of New York, 270 AD2d 687). The court is without discretion to waive these requirements. Consequently, this claim must be dismissed due to claimant's failure to demonstrate his compliance with CCA 10 and 11 and this trial, scheduled for February 17, 2004, is stricken from the court's calendar.


Accordingly, for the reasons stated above, it is ORDERED that the State's cross-motion to dismiss, Motion No. CM-67959, is GRANTED and Claim No. 96918 is DISMISSED. Claimant's motion for the assignment of counsel, Motion No. M-67915, is DENIED as moot.


February 5, 2004
Binghamton, New York

HON. FERRIS D. LEBOUS
Judge of the Court of Claims



The Court has considered the following papers in connection with these motions:
  1. Claim, filed September 8, 1997.
  2. "Application for Appointment of Counsel", Motion No. M-67915, sworn to January 13, 2004, and filed January 16, 2004.
  3. Affidavit of Chris Feaster, in support of application, sworn to January 13, 2004.
  4. Notice of Cross-Motion No. CM-67959, dated January 26, 2004, and filed January 28, 2004.
  5. Affirmation of Carol A. Cocchiola, AAG, in support of cross-motion, dated January 26, 2004, with attached exhibit.
  6. Affidavit of Carol A. McKay, in support of cross-motion, sworn to January 20, 2004, with attached exhibit.