New York State Court of Claims

New York State Court of Claims

BIELECKY v. THE STATE OF NEW YORK, #2006-016-072, Claim No. 111915, Motion No. M-72144


Synopsis


Claim was dismissed for lack of service.

Case Information

UID:
2006-016-072
Claimant(s):
SCOTT BIELECKY
Claimant short name:
BIELECKY
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
111915
Motion number(s):
M-72144
Cross-motion number(s):

Judge:
Alan C. Marin
Claimant’s attorney:
Greg Garber, Esq.
Defendant’s attorney:
Ellen Matowik, Esq., AAG
Third-party defendant’s attorney:

Signature date:
November 6, 2006
City:
New York
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

This claim was filed on January 30, 2006 and an amended claim was filed on February 1, 2006. By Order to Show Cause returnable October 18, 2006 and denominated as motion no. M-72144, claimant was directed to show cause why his claim should not be dismissed on the ground that he failed to serve the defendant State of New York pursuant to §11 of the Court of Claims Act (the “Act”). In the underlying claim, it is alleged that Mr. Bielecky had a motorcycle accident because of an unsafe roadway condition. Defendant asserts that it has never been served with this claim. Claimant maintains that he did serve the Attorney General, but concedes that this was done by regular mail, a method of service not authorized by §11.a of the Act. As such, its use is insufficient to establish jurisdiction. See, e.g., Philippe v State of New York, 248 AD2d 827, 669 NYS2d 759 (3d Dept 1998).

“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. 111915 and, accordingly, having reviewed the submissions[1], IT IS ORDERED that such claim be dismissed.


November 6, 2006
New York, New York

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




  1. [1]The following were reviewed: claimant’s Affirmation in Opposition with exhibits 1 through 4; and the September 6, 2006 affidavit of Valerie Clerk on behalf of Ellen Matowik, Esq., AAG.