New York State Court of Claims

New York State Court of Claims

TOLEDO v. STATE OF NEW YORK, #2005-018-472, Claim No. 105312, Motion No. M-70144


Synopsis


Claim is dismissed pursuant to Court of Claims Act §§ 10 and 11.

Case Information

UID:
2005-018-472
Claimant(s):
LUIZ TOLEDO
Claimant short name:
TOLEDO
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
105312
Motion number(s):
M-70144
Cross-motion number(s):

Judge:
DIANE L. FITZPATRICK
Claimant's attorney:
LUIZ TOLEDOPro Se
Defendant's attorney:
ELIOT SPITZER
Attorney General of the State of New York
By: HEATHER R. RUBINSTEIN, ESQUIREAssistant Attorney General
Third-party defendant's attorney:

Signature date:
June 9, 2005
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Defendant brings this motion to dismiss the claim for lack of jurisdiction. Defendant

asserts that it was never served with a copy of the claim. Claimant has not responded to the motion.

Defendant asserts that it was served with a notice of intention to file a claim on December 10, 2001, by certified mail return receipt requested. No claim was ever served upon the Attorney General according to Assistant Attorney General Heather R. Rubinstein and Janet A. Barringer, Senior Clerk in the Albany Office of the Attorney General. Ms. Barringer's duties require that she be familiar with the record keeping system in the Litigation Bureau of the Attorney General's Office for notices of intentions and claims. Ms. Barringer states that a review of the files in the Office of the Attorney General in the Litigation Bureau revealed no record that a claim was ever served in this matter. The Attorney General's Office did receive a copy of a letter to Claimant from the Chief Clerk of the Court of Claims, dated December 19, 2001, acknowledging that a claim had been filed.

In the claim filed with the Clerk of the Court of Claims on December 6, 2001, Claimant alleges that about two months earlier while he was taking a shower in Building C of Watertown Correctional Facility the water in the shower turned cold causing Claimant to jump and then fall down. Claimant alleges that as a result he hurt his left hand. There is no affidavit of service filed with the claim.

Court of Claims Act § 10(3) provides that a claim to recover for personal injuries as the result of the negligence or unintentional tort of an officer or employee of the State must be "filed and served upon the attorney general." Service of the claim upon the Attorney General according to Court of Claims Act § 11(a) must be by personal service or by certified mail return receipt requested. The requirements for proper service, as set forth in Court of Claims Act §§ 10 and 11, are jurisdictional prerequisites to commencing an action in this Court (Byrne v State of New York, 104 AD2d 782, 783, lv denied 64 NY2d 607). The failure to serve the Attorney General results in a failure of subject matter jurisdiction, which precludes this Court from hearing the claim (Finnerty v New York State Thruway Authority, 75 NY2d 721, 722; Nish v Town of Poestenkill, 179 AD2d 929, appeal dismissed 79 NY2d 1040).

Claimant has not come forward with proof that service was completed in accordance with the requirements of the Court of Claims Act (Wern v D'Alessandro, 219 AD2d 646). Accordingly, Defendant's motion must be GRANTED and the claim DISMISSED.

June 9, 2005
Syracuse, New York

HON. DIANE L. FITZPATRICK
Judge of the Court of Claims


The Court has considered the following documents in deciding this motion:


Notice of Motion...............................................................................................1


Affirmation of Heather R. Rubinstein, Esquire, Assistant Attorney General

in support with exhibits attached thereto......................................................2

No response was received from Claimant.