New York State Court of Claims

New York State Court of Claims

WHILBY v. STATE OF NEW YORK, #2006-032-065, Claim Nos. 107157, 107493, Motion No. M-71706


Synopsis



Case Information

UID:
2006-032-065
Claimant(s):
SEAN WHILBY
Claimant short name:
WHILBY
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
107157, 107493
Motion number(s):
M-71706
Cross-motion number(s):

Judge:
JUDITH A. HARD
Claimant’s attorney:
Sean Whilby, Pro Se
Defendant’s attorney:
Hon. Eliot Spitzer, NYS Attorney GeneralBy: Michael C. Rizzo, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
July 31, 2006
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Defendant moves this Court to dismiss claims 107493 and 107157, pursuant to CPLR 3211, for failure to serve the Attorney General as required by Court of Claims Act §11. Claimant fails to appear and oppose this relief.


In January 2003, claimant filed claim 107157 alleging that correction officers damaged certain property belonging to claimant during a cell search. Claimant also filed an unnotarized affidavit of service indicating that he served the Attorney General at his office in Albany, New York. In March 2003, claimant filed claim 107493, alleging correction officers retaliated against him for filing a complaint by tampering with his food. Claimant failed to file an affidavit of service for this claim.

It is well settled that a claim must be served upon the Attorney General through either personal service or certified mail, return receipt requested (Court of Claims Act § 11 [a]). Failure to comply with the jurisdictional requirements of the Court of Claims Act is fatal to a claim (see Turley v State of New York 279 AD2d 819 [3d Dept 2001], lv denied 96 NY2d 708 [2001]).

Defendant submits an affidavit indicating that there is no record in the office of the Attorney General of receiving the above referenced claims. Given that claimant failed to file an affidavit of service on claim 107493, and fails to appear and oppose the requested relief, claim 107493 is dismissed.

With respect to claim 107157, the Court notes that although a sworn affidavit of service is prima facie evidence of proper service (see U.S. Bank Nat. Ass'n v Vanvliet, 24 AD3d 906 [3d Dept 2005]), claimant submits an unnotarized affidavit of service. Further, the affidavit does not reflect that service was accomplished by certified mail, return receipt requested, as required by Court of Claims Act § 11 (a). Moreover, claimant fails to appear and oppose defendant‛s submissions indicating that it did not receive the claim. For these reasons, claim 107157 is dismissed.

Accordingly, defendant's motion M-71706 is granted and the claims are dismissed.



July 31, 2006
Albany, New York

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


Papers Considered:


1. Notice of Motion filed May 11, 2006;

2. Affidavit of Michael C. Rizzo sworn to May 10, 2006; Exhibit A annexed;

3. Filed Claims 107493/107157.