New York State Court of Claims

New York State Court of Claims

STENNETT v. STATE OF NEW YORK, #2005-018-490, Claim No. 108557, Motion No. M-70363


Synopsis


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

Case Information

UID:
2005-018-490
Claimant(s):
DUANE STENNETT
Claimant short name:
STENNETT
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
108557
Motion number(s):
M-70363
Cross-motion number(s):

Judge:
DIANE L. FITZPATRICK
Claimant's attorney:
DUANE STENNETTPro Se
Defendant's attorney:
ELIOT SPITZER
Attorney General of the State of New York
By: TIMOTHY P. MULVEY, ESQUIREAssistant Attorney General
Third-party defendant's attorney:

Signature date:
November 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 personal and subject matter

jurisdiction. Defendant asserts that it was never served with a copy of the claim. In support of its position, it submits the affirmation of Assistant Attorney General Timothy P. Mulvey 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 notice of intentions 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 December 12, 2003, acknowledging receipt of the claim of "Duane Stennett against Watertown CF & ANO," filed November 21, 2003. The letter was given reference number OAG# 03-017215-O. There is no record that any claim was ever received by the Attorney General's office.

The claim, which Claimant alleges accrued on August 6, 2003, seeks damages for lost property.[1] There was an "affidavit of service" filed with the Clerk of the Court as required by Rules of the Court of Claims [22 NYCRR] §206.5(a); however, the "affidavit" does not state what was mailed to the Law Department on November 7, 2003. The "affidavit" is not signed or sworn.

In order to properly commence an action in the Court of Claims, the claim must be filed with the Clerk of the Court and served upon the attorney general (Court of Claims Act § 10). Service upon the Attorney General, according to Court of Claims Act § 11(a), must be by personal service or by certified mail return receipt requested. These 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 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 sufficient proof of service. There is no proper affidavit of service and Claimant has provided no response to this motion. Under these circumstances, Defendant's motion must be GRANTED and the claim DISMISSED.




November 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 Timothy P. Mulvey, Esquire, Assistant Attorney

General, in support, with exhibit attached thereto........................2

No response was received from the Claimant.


[1] There is no indication that the claim was brought in compliance with Court of Claims Act § 10(9), which was effective on the date the claim was filed.