New York State Court of Claims

New York State Court of Claims

METCALF v. NYS, ATTORNEY GENERAL’S OFFICE, ELIOT SPITZER - AND - CO-DEFENDANT, BROOKLYN FAMILY COURT, #2006-016-068, Claim No. 111097, Motion No. M-71878


Synopsis


Claim was dismissed for lack of service.

Case Information

UID:
2006-016-068
Claimant(s):
JOHN GLENN BARRY METCALF, SR.
Claimant short name:
METCALF
Footnote (claimant name) :

Defendant(s):
NYS, ATTORNEY GENERAL’S OFFICE, ELIOT SPITZER - AND - CO-DEFENDANT, BROOKLYN FAMILY COURT
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
111097
Motion number(s):
M-71878
Cross-motion number(s):

Judge:
Alan C. Marin
Claimant’s attorney:
John Glenn Barry Metcalf, Sr., Pro se
Defendant’s attorney:
Eliot Spitzer, Attorney GeneralBy: Ellen Matowik, Esq., AAG
Third-party defendant’s attorney:

Signature date:
October 31, 2006
City:
New York
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

This claim was filed on July 5, 2005. By Order to Show Cause returnable August 16, 2006 and denominated as motion no. M-71878, claimant was directed to show cause why his claim should not be dismissed on the ground that he failed to serve the Office of the Attorney General pursuant to §11 of the Court of Claims Act (the “Act”). The underlying claim alleges various improprieties in connection with the custody of Mr. Metcalf’s children. Defendant asserts that it was not served with the claim. In his opposition papers, claimant states that he served the Attorney General twice, first on April 12, 2005 and then on June 28, 2006. Even assuming that he so served defendant, the April 12, 2005 service predates claimant’s July 2, 2005 claim (and appears to relate to another claim of Mr. Metcalf’s), and the June 28, 2006 service occurred nearly a year after the July 2, 2005 claim, such that it would not be timely for the purposes of §10 of the Act.

“It is well established that compliance with sections 10 and 11 of the Court of Claims Act pertaining to the timeliness of filing and service requirements respecting claims and notices of intention to file claims constitutes a jurisdictional prerequisite to the institution and maintenance of a claim against the State, and accordingly, must be strictly construed . . .” Byrne v State of New York, 104 AD2d 782, 783, 480 NYS2d 225, 227 (2d Dept 1984), lv denied, 64 NY2d 607, 488 NYS2d 1023 (1985) (citations omitted). See also Mallory v State of New York, 196 AD2d 925, 601 NYS2d 972 (3d Dept 1993).

In sum, this Court lacks jurisdiction over claim no. 111097 and, accordingly, having reviewed the submissions[1], IT IS ORDERED that such claim be dismissed.



October 31, 2006
New York, New York

HON. ALAN C. MARIN
Judge of the Court of Claims




  1. [1]The Court reviewed claimant’s submission dated June 28, 2006; and the June 26, 2006 affidavit of Valerie Clerk on behalf of Ellen Matowik, Esq., AAG.