New York State Court of Claims

New York State Court of Claims

McCUMMINGS v. THE STATE OF NEW YORK , #2005-028-563, Claim No. 100795, Motion No. M-70215


Synopsis


Defendant's motion to dismiss for lack of jurisdiction granted. Claimant faile dto serve attorney general with Claim.


Case Information

UID:
2005-028-563
Claimant(s):
RONALD McCUMMINGS
Claimant short name:
McCUMMINGS
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
100795
Motion number(s):
M-70215
Cross-motion number(s):

Judge:
RICHARD E. SISE
Claimant's attorney:
RONALD McCUMMINGS, pro se
Defendant's attorney:
HON. ELIOT SPITZER, ATTORNEY GENERAL
BY: Stephen J. Maher, Esq.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
October 5, 2005
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

The following papers were read on the Defendant's motion to dismiss the Claim:

1) Notice of motion and supporting affirmation of Assistant Attorney General Stephen J. Maher and the supporting affidavit of Janet A. Barringer (Barringer Affidavit), filed June 1, 2005.

OPPOSITION PAPERS: NONE.

Filed papers: Claim, filed July 28, 1999.

In the instant Claim, Claimant alleges that on August 6, 1998 he was subjected to the use of excessive force while incarcerated at the Coxsackie Correctional Facility. This Claim was reached for trial in the ordinary course and in response to the Court's trial notice the Defendant, having never answered the Claim, made a motion returnable on the date of trial to dismiss the Claim upon Claimant's failure to serve same upon the Attorney General. Due to the timing of the motion and Claimant's travel status within the prison system, the Court afforded Claimant until July 7, 2005 to submit papers in opposition to the application and proceeded with the trial of the Claim.

In support of the Defendant's application, Janet A. Barringer, Senior Clerk in the Albany 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 she found no record that a Claim was ever served upon the Attorney General (Barringer Affidavit, ¶ 4). Defendant did acknowledge that a Notice of Intention to File a Claim was received by the Attorney General on October 13, 1998 (id. at ¶ 3(a).

Claimant has not submitted a written statement or provided proof of service.

A review of the Court's file reveals why Claimant may have failed to do so. In a letter received August 30, 1999, Claimant requested that the Clerk of the Court provide him with a copy of the filed Claim because Claimant did not have a copy with which to serve the Attorney General. The Clerk of the Court responded to Claimant advising that upon payment of the copying costs a copy of the Claim would be provided. Claimant did not comply. (see Shell v State of New York, 307 AD2d 761).

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).

Here, although Claimant properly extended his time within which to make service of his Claim by serving a Notice of Intention to File a Claim (see Court of Claims Act § 10[3]), the Court finds that Claimant failed to comply with the requirements of Court of Claims Act §11(a) (i) in that he failed to serve a copy of the Claim on the Attorney General.

Accordingly, the motion is GRANTED and Claim No. 100795 shall be and is hereby dismissed.


October 5, 2005
Albany, New York
HON. RICHARD E. SISE
Judge of the Court of Claims