New York State Court of Claims

New York State Court of Claims

DAVIS v. STATE OF NEW YORK, #2005-018-474, Claim No. 102606, Motion No. M-70150


Synopsis


The claim is dismissed pursuant to the Court of Claims Act §§ 10 and 11.

Case Information

UID:
2005-018-474
Claimant(s):
GREGORY DAVIS
Claimant short name:
DAVIS
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
102606
Motion number(s):
M-70150
Cross-motion number(s):

Judge:
DIANE L. FITZPATRICK
Claimant's attorney:
GREGORY DAVISPro 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:
July 7, 2005
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Defendant brings this motion to dismiss the claim for lack of personal and subject matter

jurisdiction. Defendant asserts that it was never served with a copy of the claim. In support of its position, Defendant submits the affirmation of Assistant Attorney General Heather R. Rubinstein and the affidavit of Janet 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/Claims Practice Group of the Attorney General's office for notices of intention and claims. The only documentation of this claim received by the Attorney General's Office, according to Ms. Barringer, was a letter from the Court of Claims dated June 26, 2000, acknowledging receipt of a Claim of "Davis, Gregory 97 A 6760 v the State of New York" by the Clerk of the Court of Claims on June 14, 2000 (see, Defendant's Exhibits 1 and A).

The claim, which Claimant alleges accrued on September 18, 1999, seeks damages for loss of personal property. Claimant asserts in the claim that it is being served and filed within 120 days of exhausting all administrative remedies. There was no affidavit of service filed with the Clerk of the Court, as required by Uniform Rules of the Court of Claims [22 NYCRR] § 206.5(a).

Court of Claims Act § 10(9) requires that a claim seeking damages for loss of personal property must be filed and served within 120 days after the date on which the inmate has exhausted the administrative remedies provided by the Department of Correctional Services for personal property claims. Service upon the Attorney General, according to the Court of Claims Act § 11(a) must be by personal service or by certified mail, return receipt requested.

The requirements 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, lv dismissed 79 NY2d 1040).

Since Claimant has not come forward with any proof of service and, in fact, has not responded to the motion, Defendant's motion must be GRANTED and the claim DISMISSED.


July 7, 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.