New York State Court of Claims

New York State Court of Claims

THOMPSON v. THE STATE OF NEW YORK, #2004-034-567, Claim No. 106238, Motion No. M-69037


Synopsis


Defendant's motion to dismiss for failure to serve the Attorney General is granted. The notice of intention was served by ordinary mail, and the claim was never served.

Case Information

UID:
2004-034-567
Claimant(s):
SHAMGOD THOMPSON The caption has been amended sua sponte to reflect the only proper Defendant.
Claimant short name:
THOMPSON
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :
The caption has been amended sua sponte to reflect the only proper Defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
106238
Motion number(s):
M-69037
Cross-motion number(s):

Judge:
MICHAEL E. HUDSON
Claimant's attorney:
SHAMGOD THOMPSON, PRO SE
Defendant's attorney:
HON. ELIOT SPITZER
New York State Attorney General
BY: REYNOLDS E. HAHN, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
September 22, 2004
City:
Buffalo
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

The Court has considered the following papers in connection with this motion:

1. Claim, verified June 12, 2002, filed June 17, 2002;

2. Defendant's Notice of Motion, dated August 31, 2004, filed September 2, 2004;

3. Affidavit of Carol A. McKay, sworn to August 27, 2004, in support of motion, with attached exhibits.

Claimant, an inmate formerly confined at Attica Correctional Facility, filed a Claim alleging wrongful incarceration, inadequate medical treatment and mental anguish, as the result of an incident at that facility on January 20, 1999. Defendant has now moved to dismiss the Claim pursuant to Court of Claims Act § § 10 (3) and 11 (a) for failure to properly or timely serve the Notice of Intention and the Claim upon the Attorney General either personally, or by certified mail, return receipt requested, as required under Court of Claims Act § 11 (a) (i). Defendant contends that service of the Notice of Intention was effected by ordinary mail and the Claim was never served upon the Attorney General. Claimant has failed to submit any papers in opposition to those allegations.

Claimant's noncompliance with the service mandates within section 11 (a) (i) is fatal to his Claim. The requirements of section 11 are jurisdictional in nature, since the State as sovereign may attach terms and conditions to its consent to be sued, and lack of proper service upon the Attorney General is a failure of subject matter jurisdiction which may not be waived (Finnerty v New York State Thruway Auth., 75 NY2d 721, 722-723; Lepkowski v State of New York, 1 NY3d 201). Therefore, the Court is compelled to grant dismissal of the Claim.

Based upon the above, it is

ORDERED, that Defendant's motion is granted, and the Claim is dismissed. The Clerk of the Court is hereby directed to close the file.

September 22, 2004
Buffalo, New York

HON. MICHAEL E. HUDSON
Judge of the Court of Claims