New York State Court of Claims

New York State Court of Claims

YOUNG v. THE STATE OF NEW YORK, #2005-028-507, Claim No. 106319, Motion No. M-69092


Synopsis


Court's Order to Show Cause - Court directed parties to address Claimant's apparent failure to comply with the service requirements of Court of Claims Act section 11. Defendant established no service. Claim dismissed.


Case Information

UID:
2005-028-507
Claimant(s):
ROBERT YOUNG The caption of this action is amended sua sponte to reflect the State of New York as the only properly named defendant.
Claimant short name:
YOUNG
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :
The caption of this action is amended sua sponte to reflect the State of New York as the only properly named defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
106319
Motion number(s):
M-69092
Cross-motion number(s):

Judge:
RICHARD E. SISE
Claimant's attorney:
GIBLIN & LYNCH, ESQS.
Defendant's attorney:
HON. ELIOT SPITZER, ATTORNEY GENERAL
BY: Grace BranniganAssistant Attorney General
Third-party defendant's attorney:

Signature date:
January 27, 2005
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

The following papers were read on the Court's motion, brought on by Order to Show Cause, for clarification from the parties regarding service of this claim.

1. Order to Show Cause, filed on September 17, 2004

2. Affidavit of Catherine Naveed, sworn to on the 20th day of October, 2004 with annexed Exhibits (Naveed Affidavit)

3. OPPOSITION PAPERS: NONE.


4. Filed papers: Claim, filed July 5, 2002

On July 5, 2002 a claim was filed with the Clerk of the Court and assigned Claim No. 106319. It alleged that the cause of action, sounding in negligence, accrued on April 28, 2002 when Claimant tripped and fell at the corner of Wall Street and Broadway in Manhattan.

The Claim was assigned to the undersigned and a review by the Court of its file revealed that Defendant had never filed an answer to the Claim and, consequently, the Court issued an Order to Show Cause directing both parties to provide statements relating to service of this Claim. Responding for Defendant, Catherine Naveed, a Clerk in the New York City Claims Bureau of the Office of the Attorney General, conducted a search of the records of that office and stated that in her review of the Department of Law files although she found a Notice of Intention to File a Claim filed by a Robert Young which predated the accrual date (Naveed Affidavit, ¶ 4) she found no record that a claim was ever served upon the Attorney General (id.)[1].

Claimant has submitted no written statement and provided no proof of service in response to the Court's Order to Show Cause with regard to this Claim. Claimant failed to file an affidavit of service when the Claim was originally filed with the Clerk of the Court (see 22 NYCRR §206.5[a]).

Court of Claims Act § 11 (a) provides, in relevant part, that a copy of the claim at issue shall be served personally or by certified mail, return receipt requested, upon the attorney general. The requirements set forth in Court of Claims Act § 11 are jurisdictional in nature and, as such, must be strictly construed (see Finnerty v New York State Thruway Auth., 75 NY2d 721, 722; Commack Self-Serv. Kosher Meats v State of New York, 270 AD2d 687).

The Court finds that Claimant failed to comply with the requirements of Court of Claims Act §11(a) in that he failed to serve a copy of the claim on the Attorney General. Accordingly, Claim No. 106319 shall be and hereby is dismissed.

January 27, 2005
Albany, New York

HON. RICHARD E. SISE
Judge of the Court of Claims



[1] The Notice of Intention to File a Claim referred to by Defendant was served on the Attorney General on February 16, 2000; fully two years before the accident alleged in the filed Claim.