New York State Court of Claims

New York State Court of Claims

TRUDGE v. THE STATE OF NEW YORK, #2006-032-030, Claim No. 111240, Motion Nos. M-70970, M-70869


Synopsis



Case Information

UID:
2006-032-030
Claimant(s):
STERLING TRUDGE
Claimant short name:
TRUDGE
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
111240
Motion number(s):
M-70970, M-70869
Cross-motion number(s):

Judge:
JUDITH A. HARD
Claimant's attorney:
Sterling Trudge, Pro Se
Defendant's attorney:
Hon. Eliot Spitzer, NYS Attorney GeneralBy: Kathleen M. Arnold, Assistant Attorney General, Of Counsel
Third-party defendant's attorney:

Signature date:
March 30, 2006
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Defendant moves this Court to dismiss the claim for lack of subject matter jurisdiction. In opposing this relief, claimant moves to treat his notice of intention as a claim pursuant to Court of Claims Act § 10 (8) (a).

In August 2005, claimant filed claim 111240 alleging that a surgery that he received on April 21, 2004, while an inmate at Franklin Correctional Facility [hereinafter Franklin], failed to entirely remove a cyst. Attached to his claim, claimant submits a notice of intention with an affidavit of service sworn to July 19, 2004, reciting service upon the Attorney General. The notice of intention, however, raises allegations concerning a different incident. This different incident allegedly occurred in May 2004, when he injured his back by stepping into a pothole in an unspecified walkway located at Franklin.

With respect to claim 111240, claimant admits that he served his claim via regular mail. Claimant's service of his claim by regular mail did not comport with the requirements of Court of Claims Act § 11 (a) (i), requiring service either personally or via certified mail, return receipt requested. As such, the claim must be dismissed (see Govan v State of New York 301 AD2d 757 [3d Dept 2003]).

With respect to claimant's motion, in his moving papers, claimant submits a different notice of intention than the one attached to claim 111240, and he avers that he served this pleading on July 14, 2004. This notice of intention references the April 2004 incident, but the affidavit of service is dated July 19, 2004. Claimant's motion papers, however, reference his injury arising from May 2004 incident [Reply Affidavit of Sterling Trudge sworn to September 18, 2005, ¶ 5]. Based on these confusing submissions, the Court denies claimant's request for relief. To the extent that claimant is aggrieved by this determination, claimant may, on proper papers, seek late claim relief.

Accordingly, defendant's motion M-70869 is granted and claim 111240 is dismissed. Claimant's motion M-70970 is denied.



March 30, 2006
Albany, New York

HON. JUDITH A. HARD
Judge of the Court of Claims


Papers Considered:


1. Notice of Motion (M-70869) filed September 9, 2005;

2. Affirmation of Kathleen M. Arnold dated September 9, 2005; Exhibit A annexed;

3. Claimant's "Reply" Affidavit sworn to September 18, 2005;

4. Notice of Motion (M-70970) filed November 21, 2005;

5. Affidavit of Sterling Trudge sworn to November 16, 2005; unnumbered attachments annexed;

6. Affirmation of Kathleen M. Arnold dated November 30, 2005.

Filed Papers - Claim; Answer