New York State Court of Claims

New York State Court of Claims

SABEL v. THE STATE OF NEW YORK, #2004-019-565, Claim No. 106538, Motion No. M-68361


Synopsis


State's motion to dismiss claim based upon claimant's failure to serve claim is granted.

Case Information

UID:
2004-019-565
Claimant(s):
REBECCA SABEL and ROBERT SABEL The court has sua sponte amended the caption to reflect the State of New York as the only proper defendant.
Claimant short name:
SABEL
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):
106538
Motion number(s):
M-68361
Cross-motion number(s):

Judge:
FERRIS D. LEBOUS
Claimant's attorney:
PETER E. TANGREDI AND ASSOCIATESBY: Wilbert Ramos, Esq., of counsel
Defendant's attorney:
HON. ELIOT SPITZER, ATTORNEY GENERAL
BY: Joseph F. Romani, Assistant Attorney General,of counsel
Third-party defendant's attorney:

Signature date:
July 15, 2004
City:
Binghamton
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The State of New York (hereinafter "State") moves for an order dismissing this claim pursuant to Court of Claims Act (hereinafter "CCA") 10 and 11. The court has not received any papers in opposition from or on behalf of claimants.

By way of background, this court previously granted claimants permission to file this late claim providing them sixty days to file a claim in the Office of the Clerk and to serve a copy thereof on the defendant. (Sabel v State of New York, Ct Cl, March 28, 2002, Lebous, J., Claim No. None, Motion No. M-64717 [UID No. 2002-019-524]). Approximately four months thereafter, claimants moved for an extension of time to comply with the terms of said Decision and Order indicating they had served the claim, but neglected to file the same. This court granted the claimants' motion for an extension providing claimants until September 16, 2002 to both serve and file said claim. (Sabel v State of New York, Ct Cl, August 7, 2002, Lebous, J., Claim No. None, Motion No. M-65487 [UID No. 2002-019-558]). At a subsequent conference between the court and counsel on February 5, 2003, the assistant attorney general indicated that the claim had not yet been served on the State in compliance with the latest Decision and Order.


By way of this motion the State moves for dismissal of this claim on the grounds this court lacks jurisdiction because the claim has not been served on the Attorney General's office pursuant to CCA 10 and 11 in accordance with the terms of this court's Decision and Order dated August 7, 2002.[1] The State submits an affidavit from Marlene L. Boedicker, a Keyboard Specialist II in the Office of the Attorney General, Binghamton office, who avers that the State "[h]as not received a copy of a claim from the above claimants or their attorney by any means, whether personal service or the United States Postal Service." (Affidavit of Marlene L. Boedicker, ¶ 6).


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). Claimants have failed to come forward in opposition to this motion. As such, Claim No. 106538 must be dismissed.


Accordingly, for the reasons stated above, it is ORDERED that the State's motion to dismiss, Motion No. M-68361, is GRANTED and Claim No. 106538 is DISMISSED.



July 15, 2004
Binghamton, New York

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


The court has considered the following papers in connection with this motion:
  1. DECISION AND ORDER, Lebous J., Claim No. None, Motion No. M-64717, filed April 9, 2002.
  2. DECISION AND ORDER, Lebous, J., Claim No. None, Motion No. M-65487, filed August 12, 2002.
  3. Claim, filed August 22, 2002.
  4. Notice of Motion No. M-68361, dated June 1, 2004
  5. Affirmation of Joseph F. Romani, AAG, in support of motion, dated June 1, 2004, with attached exhibits.
  6. Affidavit of Marlene L. Boedicker, in support of motion, sworn to June 1, 2004.



[1]Due to an error in the State's affidavit of service of these motion papers, the court adjourned the motion to allow time for proper service.