New York State Court of Claims

New York State Court of Claims

SMITHERS v. THE STATE OF NEW YORK, #2004-019-601, Claim No. 108845, Motion No. M-69254


Synopsis


In response to court's sua sponte Order to Show Cause, claim is dismissed due to claimant's failure to establish service of claim upon Office of Attorney General.

Case Information

UID:
2004-019-601
Claimant(s):
BOICE F. SMITHERS, JR.
Claimant short name:
SMITHERS
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
108845
Motion number(s):
M-69254
Cross-motion number(s):

Judge:
FERRIS D. LEBOUS
Claimant's attorney:
BOICE F. SMITHERS, JR., 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:
December 13, 2004
City:
Binghamton
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

By an Order to Show Cause filed with the Clerk of the Court on October 21, 2004, this court, sua sponte, directed both parties to submit written statements and any relevant proof to establish whether claimant properly served this claim upon the Office of the Attorney General within ninety days of the accrual of the claim pursuant to Court of Claims Act (hereinafter "CCA") 10 and 11.

In the underlying claim, claimant alleges he received inadequate medical care for a bat bite he suffered while in his cell at Elmira Correctional Facility on October 17, 2002. The claim was filed with the Clerk of the Court on January 29, 2004. The affidavit of service filed with said claim indicates service on several correctional facilities including, Elmira, Auburn, Clinton, and Great Meadow Correctional Facilities, but not the Office of the Attorney General. There is no answer contained in the court's file.


In response to the Order to Show Cause, the State submits an affidavit from Janet Barringer, a senior clerk in the Attorney General's Albany office who avers as follows: "[b]ased on my review of the files in the Office of the Attorney General of the State of New York, Claims Practice Group, I find no record that the Claim in this matter was ever served on the Attorney General." (Affidavit of Janet Barringer, ¶ 4). Claimant has not submitted any papers in response to the court's Order to Show Cause. The court notes two letters from claimant in this record, one to the Clerk of the Court and the other to the Office of the Attorney General, in which he refers to a return receipt number. However, without additional proof such as the actual green return receipt card, claimant has failed to establish proper and timely service in compliance with CCA 10 & 11 as is his burden. (Commack Self-Serv. Kosher Meats v State of New York, 270 AD2d 687).


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 this claim on the Office of the Attorney General within ninety days after accrual pursuant to CCA 11. 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-69254, Claim No. 108845 is DISMISSED.


December 13, 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. Claim, filed January 29, 2004.
  2. ORDER TO SHOW CAUSE, Motion No. M-69254, dated October 19, 2004, and filed October 21, 2004.
  3. Affirmation of Carol A. Cocchiola, AAG in response to Order to Show Cause, dated December 6, 2004, and filed December 8, 2004, with attached exhibits.
  4. Affidavit of Janet Barringer, in response to motion, sworn to October 29, 2004, with attached exhibit.