New York State Court of Claims

New York State Court of Claims

DENNIS v. THE STATE OF NEW YORK, #2006-028-513, Claim No. 106888, Motion No. M-70933


Synopsis



Case Information

UID:
2006-028-513
Claimant(s):
MICHAEL DENNIS
Claimant short name:
DENNIS
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
106888
Motion number(s):
M-70933
Cross-motion number(s):

Judge:
RICHARD E. SISE
Claimant's attorney:
MICHAEL DENNIS, pro se
Defendant's attorney:
HON. ELIOT SPITZER, ATTORNEY GENERAL
BY: Leslie A. Stroth, Esq.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
February 3, 2006
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The Court, in reaching its decision on the present motion, has read and considered the following papers:


(1) Notice of Motion dated November 9, 2005 and filed on November 14, 2005 together with Exhibits "A-F";


(2) Affirmation in Support of Leslie A.Stroth, Assistant Attorney General, dated November 9, 2005 and filed on November 14, 2005;


The Claimant has filed no papers in opposition.

The Claim herein alleges that the Claimant, Mr. Dennis, was assaulted while an inmate at the Arthur Kill Correctional Facility. The Claim was filed in the Office of the Clerk of the Court of Claims on November 4, 2002. It was served on the Office of the Attorney General by regular mail on November 6, 2002 (Exhibit "B" annexed to Notice of Motion).

The State served its Answer on December 13, 2002 and raised, inter alia, the affirmative defenses of failing to include the particulars of the State's negligence as required by the Court of Claims Act §11, and that the Claim was not served upon the Office of the Attorney General by certified mail, return receipt requested as required by Court of Claims Act §11.

In the present application, the State seeks dismissal for failure to prosecute, as well as based upon its two affirmative defenses (Affirmation in Support, p 2-6 [unpaginated]). This Court has continually held that the failure to properly employ the method of service set forth in the Court of Claims Act is grounds for dismissal (see Sandoval v State of New York, 147 Misc 2d 1072).

Furthermore, the Claimant has been deported from the United States of America, and has failed to appear for status conferences scheduled for August 31, 2005 and October 14, 2005 (Exhibit "E" annexed to Notice of Motion). Neither has he opposed the instant application nor taken issue with the statement of Assistant Attorney General Stroth, that he will never be permitted to return to the United States to testify (Affirmation in Support, p 9 [unpaginated]).

Accordingly, based upon all of the above, the application is granted and the Claim is hereby dismissed.


February 3, 2006
Albany, New York

HON. RICHARD E. SISE
Judge of the Court of Claims