New York State Court of Claims

New York State Court of Claims

BROWN v. THE STATE OF NEW YORK, #2006-015-072, Claim No. 111405, Motion No. M-71028


Synopsis


Claim dismissed for lack of jurisdiction where claimant failed to serve a copy of claim upon the Attorney General.

Case Information

UID:
2006-015-072
Claimant(s):
ARGIE BROWN
1 1.The caption of this claim was amended sua sponte by order dated December 2, 2005 to reflect the only properly named defendant.
Claimant short name:
BROWN
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :
The caption of this claim was amended sua sponte by order dated December 2, 2005 to reflect the only properly named defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
111405
Motion number(s):
M-71028
Cross-motion number(s):

Judge:
FRANCIS T. COLLINS
Claimant’s attorney:
Argie Brown, Pro SeNo Appearance
Defendant’s attorney:
Honorable Eliot Spitzer, Attorney General
By: Paul F. CaginoAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
February 27, 2006
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The defendant's motion to dismiss the instant claim for lack of jurisdiction alleging the claimant failed to serve a copy of the claim upon the Attorney General as required by Court of Claims Act § 11 (a) is granted. The claim was filed with the Clerk of the Court on September 22, 2005 and assigned claim number 111405. It alleges that claimant's tax refund was offset by a student loan obligation which claimant satisfied in 1991.

The claimant was served with a copy of this motion and has failed to oppose it. In support of the motion the defendant has offered the affidavit of Theresa Wowk, a Clerk II in the Albany Office of the Attorney General, which states:
4. Based on my review of the files in the Office of the Attorney General of the State of New York, Litigation Bureau, Claims Practice Group, I find that the Office of the Attorney General received a letter from the Court of Claims dated October 7, 2005 acknowledging receipt by the Court on September 22, 2005 of a Claim of Argie Brown against the State of New York. This was given the reference number: OAG # 05-030917-O. A copy of this document is attached as Exhibit "A."

5. Based on my review of the files in the Office of the Attorney General of the State of New York, Claims Practice Group, I find no record that the Claim in this matter was ever served on the Attorney General.

It is well established that the service and filing requirements of the Court of Claims Act are jurisdictional in nature. In Lichtenstein v State of New York, 93 NY2d 911, the Court of Appeals, quoting from its earlier decision in Dreger v New York State Thruway Auth., 81 NY2d 721, 724, stated: "[B]ecause suits against the State are allowed only by the State's waiver of sovereign immunity and in derogation of the common law, statutory requirements conditioning suit must be strictly construed."

The defendant has adequately established that the claimant failed to serve a copy of the claim upon the Attorney General as required by Court of Claims Act § 11. Accordingly, the claim must be dismissed as the claimant has failed to meet the literal requirements of the Court of Claims Act relative to commencement of an action against the State of New York in the Court of Claims (Dreger v New York State Thruway Auth., supra, at 723).

February 27, 2006
Saratoga Springs, New York

HON. FRANCIS T. COLLINS
Judge of the Court of Claims


The Court considered the following papers:
  1. Notice of motion dated December 1, 2005;
  1. Affirmation of Paul F. Cagino dated November 30, 2005;
  2. Affidavit of Theresa Wowk sworn to November 30, 2005 with exhibit.