New York State Court of Claims

New York State Court of Claims

MARSHALL v. THE STATE OF NEW YORK, #2006-009-058, Claim No. 106081, Motion No. M-72224


Synopsis


Defendant’s motion to dismiss the claim based upon a failure of the claimant to serve his claim was granted.

Case Information

UID:
2006-009-058
Claimant(s):
DERRICK MARSHALL
1 1.
The Court, sua sponte, has amended the caption to reflect the State of New York as the only proper defendant before this Court.
Claimant short name:
MARSHALL
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :
The Court, sua sponte, has amended the caption to reflect the State of New York as the only proper defendant before this Court.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
106081
Motion number(s):
M-72224
Cross-motion number(s):

Judge:
NICHOLAS V. MIDEY JR.
Claimant’s attorney:
DERRICK MARSHALL, Pro Se
Defendant’s attorney:
HON. ELIOT SPITZER
Attorney General
BY: Joel L. Marmelstein, Esq.,
Assistant Attorney GeneralOf Counsel.
Third-party defendant’s attorney:

Signature date:
November 2, 2006
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Defendant has brought this motion seeking an order dismissing the claim based upon a failure of the claimant to serve his claim upon the Attorney General.

The following papers were considered by the Court in connection with this motion:
Notice of Motion, Affirmation, Affidavit of Janet Barringer, with Exhibit 1,2,3


Letter response from claimant dated September 15, 2006 4


Filed Papers: Claim.

By this motion, defendant seeks an order dismissing the claim on the basis that the claim, although filed with the Clerk of the Court, was never served upon the Attorney General. In support of its motion, defendant has attached the Affidavit of Janet Barringer, a Senior Clerk in the Albany Office of the Attorney General. One of her duties requires that she be familiar with the record keeping system regarding notices of intention to file claims and claims that are received in the Office of the Attorney General. In her Affidavit, Ms. Barringer states that based upon her examination of the files in the Office of the Attorney General, Litigation Bureau/Claims Practice Group, she finds no record that the claim in this matter was ever served on the Attorney General.

In his response to this motion (see Item 4), claimant has not submitted any documentary evidence, or any evidence whatsoever, to indicate that his claim had ever been served upon the Attorney General.

The requirements for the commencement of an action in the Court of Claims are jurisdictional and the failure to properly file and serve a claim results in a fatal defect, which cannot be ignored or cured (Dreger v New York State Thruway Auth., 81 NY2d 721; Bogel v State of New York, 175 AD2d 493; Byrne v State of New York, 104 AD2d 782). Section 11(a) of the Court of Claims Act requires a claim to be served upon the Attorney General either personally or by certified mail, return receipt requested. In this case, defendant has established to the satisfaction of the Court that the claim was never served upon the Attorney General. Accordingly, the Court does not have jurisdiction of the claim, and it must be dismissed.

Therefore, it is

ORDERED, that Motion No. M-72224 is hereby GRANTED; and it is further

ORDERED, that Claim No. 106081 is hereby DISMISSED.


November 2, 2006
Syracuse, New York

HON. NICHOLAS V. MIDEY JR.
Judge of the Court of Claims