New York State Court of Claims

New York State Court of Claims

METCALF v. BROOKLYN FAMILY COURT, JUDGES CORDOVA, GROSVENOR, KNIPPS, TURBOW, MORGANSTEIN AND MARY ODUMS, #2005-016-014, Claim No. 109929, Motion No. M-69489


Synopsis


Claim dismissed for lack of service.

Case Information

UID:
2005-016-014
Claimant(s):
JOHN GLENN BARRY METCALF, SR.
Claimant short name:
METCALF
Footnote (claimant name) :

Defendant(s):
BROOKLYN FAMILY COURT, JUDGES CORDOVA, GROSVENOR, KNIPPS, TURBOW, MORGANSTEIN AND MARY ODUMS
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
109929
Motion number(s):
M-69489
Cross-motion number(s):

Judge:
Alan C. Marin
Claimant's attorney:
John Glenn Barry Metcalf, Sr., Pro se
Defendant's attorney:
Eliot Spitzer, Attorney GeneralNo Appearance
Third-party defendant's attorney:

Signature date:
February 22, 2005
City:
New York
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

This claim was filed on October 7, 2004. No affidavit of service on the State of New York is contained in the Court's file, nor is an answer contained in such file. The underlying claim alleges wrongdoing by judges of the Brooklyn Family Court.

By Order to Show Cause returnable February 16, 2005 and denominated as motion no. M-69489, Mr. Metcalf was directed to show cause why this claim should not be dismissed on the ground that he failed to comply with the service requirements of section 11 of the Court of Claims Act. In his opposition papers, claimant states that there is no "appearance of any failure to serve claim no. 109929 upon the State of New York," citing attachments to his papers. However, none of the attachments indicate that the State was in fact served with this claim.

"It is well established that compliance with sections 10 and 11 of the Court of Claims Act pertaining to the timeliness of filing and service requirements respecting claims and notices of intention to file claims constitutes a jurisdictional prerequisite to the institution and maintenance of a claim against the State, and accordingly, must be strictly construed . . ." Byrne v State of New York, 104 AD2d 782, 783, 480 NYS2d 225, 227 (2d Dept 1984), lv denied, 64 NY2d 607, 488 NYS2d 1023 (1985) (citations omitted). See also Mallory v State of New York, 196 AD2d 925, 601 NYS2d 972 (3d Dept 1993).

In sum, this Court lacks jurisdiction over claim no. 109929. Accordingly, having reviewed the submissions[1], IT IS ORDERED that claim no. 109929 be dismissed.


February 22, 2005
New York, New York

HON. ALAN C. MARIN
Judge of the Court of Claims




  1. [1]The Court reviewed claimant's "Answer and Counterclaim to Order to Show Cause," with exhibits A through E. Defendant submitted no papers on this motion.