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
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.