New York State Court of Claims

New York State Court of Claims

Gaines v. THE STATE OF NEW YORK, #2006-032-068, Claim No. 110483, Motion No. M-71836


Synopsis



Case Information

UID:
2006-032-068
Claimant(s):
GERALD GAINES, #03A1848
Claimant short name:
Gaines
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
110483
Motion number(s):
M-71836
Cross-motion number(s):

Judge:
JUDITH A. HARD
Claimant’s attorney:
Gerald Gaines, Pro Se
Defendant’s attorney:
Hon. Eliot Spitzer, NYS Attorney GeneralBy: Frederick H. McGown, III, Assistant Attorney General, Of Counsel
Third-party defendant’s attorney:

Signature date:
August 2, 2006
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)
2006-032-070


Decision

Defendant State of New York, by separate motions, moves to dismiss claims 110483 and 112327 for failure to timely and properly serve the claims pursuant to Court of Claims Act §§ 10 and 11. Both filed claims concern the same cause of action whereby claimant alleges that he was assaulted by correction officers at Clinton Correctional Facility and injured on September 28, 2004. Defendant answered claim 110483 raising as an affirmative defense, inter alia, that claimant failed to timely and properly serve the claim pursuant to Court of Claims Act § 11. Defendant’s response to claim 112327 is the instant pre-answer motion to dismiss (M-71834), raising the same defenses. In support of its motion, defendant includes a copy of the stamped envelopes which contained the claims served upon the Office of the Attorney General evidencing that claimant served the claims by ordinary mail rather than by certified mail, return receipt requested, as required by the statute.

Claimant has not responded to defendant’s motions.

Pursuant to Court of Claims Act § 11(a)(i), any party seeking to file a claim against the State must serve a copy of it upon the Attorney General by certified mail, return receipt requested. In interpreting the above provision, the Court of Appeals has noted that "statutory requirements conditioning suit must be strictly construed" (Dreger v New York State Thruway Auth., 81 NY2d 721, 724 [1992]). Indeed, the Court is deprived of subject matter jurisdiction, and the claim must be dismissed, when the mail requirements are not met (see Finnerty v New York State Thruway Auth., 75 NY2d 721, 723 [1989]).

Consequently, in light of defendant’s proffer and the absence of any contrary evidence or argument by claimant, M-71834 and M-71836 are granted and claims 112327 and 110483 are hereby dismissed.


August 2, 2006
Albany, New York

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


Papers Considered:


1. Notice of Motion (M-71834) filed May 24, 2006;

2. Notice of Motion (M-71836) filed May 24, 2006;

3. Affirmation of Frederick H. McGown, III (M-71834) with annexed Exhibits dated May 24, 2006;

4. Affirmation of Frederick H. McGown, III (M-71836) with annexed Exhibits dated May 24, 2006;

5. Claim 110483 filed February 10, 2005;

6. Claim 112327 filed May 11, 2006;

7. Verified Answer for Claim 110483 filed February 9, 2005.