New York State Court of Claims

New York State Court of Claims

HARRINGTON v. THE STATE OF NEW YORK, #2005-009-054, Claim No. 106705, Motion No. M-70726


Synopsis


Defendant's motion for dismissal of the claim based upon the failure of claimant to serve his claim upon the Attorney General was granted.

Case Information

UID:
2005-009-054
Claimant(s):
DAVID P. HARRINGTON
Claimant short name:
HARRINGTON
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
106705
Motion number(s):
M-70726
Cross-motion number(s):

Judge:
NICHOLAS V. MIDEY JR.
Claimant's attorney:
DAVID P. HARRINGTON, Pro Se
Defendant's attorney:
HON. ELIOT SPITZER
Attorney General
BY: Joel L. Marmelstein, Esq.,
Assistant Attorney GeneralOf Counsel.
Third-party defendant's attorney:

Signature date:
November 15, 2005
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

Defendant has brought this motion seeking an order dismissing the claim based upon a failure of the claimant to serve his claim upon the Attorney General.

The following papers were considered by the Court in connection with this motion:
Notice of Motion, Affirmation, Affidavit of Janet A. Barringer, with Exhibits 1,2,3


Filed Papers: Claim.

Claimant has not submitted any papers in opposition to this motion, nor has he contacted the Court in any manner whatsoever regarding this motion.

By this motion, defendant seeks an order dismissing the claim on the basis that the claim, although filed with the Court, was never served upon the Attorney General. In support of its motion, defendant has attached the affidavit of Janet A. Barringer, a Senior Clerk in the Albany office of the Attorney General. One of her duties requires that she be familiar with the record keeping system regarding notices of intention to file claims and claims that are received in the office of the Attorney General. In her affidavit, Ms. Barringer states that based upon her examination of the files in the office of the Attorney General, Litigation Bureau/Claims Practice Group, she finds no record that the claim in this matter was ever served on the Attorney General[1].

The requirements for the commencement of an action in the Court of Claims are jurisdictional and the failure to properly file and serve a claim results in a fatal defect, which cannot be ignored or cured (Byrne v State of New York, 104 AD2d 782). Section 11(a) of the Court of Claims Act requires a claim to be served upon the Attorney General either personally or by certified mail, return receipt requested. In this case, defendant has established to the satisfaction of the Court that the claim was never served upon the Attorney General. Accordingly, the Court does not have jurisdiction of the claim, and it must be dismissed.

Therefore, it is

ORDERED, that Motion No. M-70726 is hereby GRANTED; and it is further

ORDERED, that Claim No. 106705 is hereby DISMISSED.


November 15, 2005
Syracuse, New York

HON. NICHOLAS V. MIDEY JR.
Judge of the Court of Claims




[1] In her affidavit, Ms. Barringer does acknowledge that a notice of intention to file a claim was received by the Attorney General on October 1, 2002. This notice of intention, however, is a separate and distinct document from the claim which was filed with the Clerk of the Court of Claims on September 27, 2002.