Robert Sims (movant) requests permission to file and serve a late claim. The
application is denied.
It appears that the movant’s affidavit of service upon the defendant of
his motion to file a late claim is either patently false or that it contains
inaccurate information. The movant’s notice of motion states,
“[p]lease take notice that upon the annexed affidavit of Robert Sims sworn
to before me this date of October 26, 2006 . . . .” Movant’s
affidavit in support of the motion to file a late claim is signed and sworn
before notary public Timothy Mootz (Mootz) “this 26 day of ________,
2006” (which the Court determines to be October 26, 2006).
The movant’s affidavit of service of the motion was also signed and sworn
to in the same manner, on October 26, 2006, before notary public Mootz. Yet
movant’s affidavit of service states that service upon the
defendant was made on October 30, 2006, four days after the affidavit of
service was signed by movant and notarized by Mootz, thereby attesting that an
act four days in the future had already occurred. Moreover, movant’s
affidavit of service fails to indicate in what manner the defendant was served,
if in fact service was made at all. As such, the Court finds that movant’s
affidavit of service lacks probative value.
Further, defendant has provided an affidavit by Janet A. Barringer, Senior
Clerk in the Claims Bureau of the Attorney General’s office, stating that
she could find “no record that the Motion to Late File in this matter was
ever served on the Attorney General.”
Accordingly, the Court finds that movant has failed to serve the defendant with
his application to file a late claim.
“The failure to give requisite notice of motion deprives the court of
jurisdiction to entertain the motion” (Burstin v Public Service Mut.
Ins. Co., 98 AD2d 928, 929 [3d Dept 1983]; see, Welch v State of
New York, 261 AD2d 537, 538 [2nd Dept 1999]).
The application, for the foregoing reasons, is therefore denied, without