New York State Court of Claims

New York State Court of Claims

THOMAS v. THE STATE OF NEW YORK, #2006-032-073, Claim No. 106648


Synopsis



Case Information

UID:
2006-032-073
Claimant(s):
CLARENCE THOMAS
1 1.The Court, sua sponte, amends the caption to reflect the only proper defendant.
Claimant short name:
THOMAS
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :
The Court, sua sponte, amends the caption to reflect the only proper defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
106648
Motion number(s):

Cross-motion number(s):

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

Signature date:
August 7, 2006
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Prior to trial on April 20, 2006, defendant moved this Court to dismiss the claim pursuant to CPLR 3211, for failure to serve the Attorney General as required by Court of Claims Act §11. The Court adjourned the trial and afforded claimant an opportunity to provide evidence of proper service, which claimant failed to do.[2] For the reasons to be stated, the Court dismisses the 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 719 NY2d 380 [2001]).

Defendant submits an affidavit indicating that there is no record in the office of the Attorney General of receiving the above referenced claim. Although claimant filed an affidavit of service, the affidavit recites service upon the United States Attorney General, who is not a party to this action. As such, the claim must be dismissed.

Accordingly, defendant's oral motion made at trial is granted and the claim is dismissed.



August 7, 2006
Albany, New York

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


Papers Considered:


1. Affidavit of Janet A. Barringer dated April 14, 2006.



[2].The Court notes that, instead, claimant filed an "amended complaint," without leave of court, and without an affidavit of service.