New York State Court of Claims

New York State Court of Claims

GREEN v. THE STATE OF NEW YORK, #2006-044-515, Claim No. None, Motion No. M-72177


Synopsis


Claimant’s motion for summary judgment in lieu of complaint is denied. Failure to file a claim and serve it on the Attorney General deprives this Court of both subject matter and personal jurisdiction.

Case Information

UID:
2006-044-515
Claimant(s):
SHAWN GREEN
Claimant short name:
GREEN
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
None
Motion number(s):
M-72177
Cross-motion number(s):

Judge:
CATHERINE C. SCHAEWE
Claimant’s attorney:
SHAWN GREEN, pro se
Defendant’s attorney:
HON. ELIOT SPITZER, ATTORNEY GENERALBY: Joseph F. Romani, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
November 15, 2006
City:
Binghamton
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant, an inmate currently located at Great Meadow Correctional Facility, moves for summary judgment in lieu of complaint. Defendant State of New York (“defendant”) opposes the motion.

Claimant is seeking recovery for personal property allegedly lost when he was returned to Attica Correctional Facility (“Attica”) from a court appearance on March 13, 2006 at Elmira Correctional Facility (“Elmira”). Claimant describes the lost property as his “court bag”. Claimant’s administrative claim for his lost property was denied with an explanation that he received his court bag on April 12, 2006. Claimant filed an appeal, arguing that the court bag received on April 12, 2006 was a different bag which had been packed for a second court appearance held on March 27, 2006. On or about June 30, 2006, claimant’s appeal was denied. Having exhausted his administrative remedies, claimant filed a notice of motion for summary judgment in lieu of complaint with the Clerk of this Court. As part of his motion, claimant attached an affidavit in support, a memorandum of law, an inventory sheet for a court bag, and an inmate claim form. However, claimant did not file a claim.

In order for this Court to have jurisdiction, a claimant must timely file and serve a claim or serve a notice of intention to file a claim (Court of Claims Act §§ 10, 11; see generally Rivera v State of New York, 5 AD3d 881 [2004]; Bullard v State of New York, 307 AD2d 676, 677 [2003]).[1] Claims for lost or damaged property made by an inmate in the custody of the Department of Correctional Services are specifically provided for in Court of Claims Act § 10 (9). Given claimant’s failure to file a claim and serve it upon the Attorney General, this Court lacks both subject matter jurisdiction of this action and personal jurisdiction over defendant (see Finnerty v New York State Thruway Auth., 75 NY2d 721 [1989]). Claimant’s motion for summary judgment in lieu of complaint is denied.

Even if the failure to file a claim was not fatal, claimant’s motion would still require denial. CPLR 3213 provides that “[w]hen an action is based upon an instrument for the payment of money only or upon any judgment, the plaintiff may serve with the summons a notice of motion for summary judgment and the supporting papers in lieu of a complaint”. It is noteworthy that the statute specifically authorizes the notice of motion to accompany a summons, a document which is not referenced in the Court of Claims Act and which has not been defined to include a claim (cf. CPLR 105 [b] [where “summons” specifically includes a notice of petition in a special proceeding]).[2] Notwithstanding the general applicability of the CPLR in the Court of Claims (see Court of Claims Act § 9 [9]; Uniform Rules for the Court of Claims § 206.1 [c]), the Court finds that the procedural device of a motion for summary judgment in lieu of complaint is not available in the Court of Claims.

In any event, even if the Court were to consider the merits of the motion, it would be denied. In order to establish a prima facie case under CPLR 3213,[3] the proponent must submit proof of the instrument “and a failure to make the payments called for by its terms” (Seaman-Andwall Corp. v Wright Machine Corp., 31 AD2d 136, 137 [1968], affd 29 NY2d 617; see also Interman Indus. Prods. v R.S.M. Electron Power, 37 NY2d 151, 155 [1975]). The inventory sheet and the inmate claim form are clearly insufficient to establish an unconditional obligation to pay a sum certain, on a specified date (see Ian Woodner Family Collection v Abaris Books, 284 AD2d 163, 164 [2001]). In addition, the amount of money due is not ascertainable without resorting to extrinsic evidence (Weissman v Sinorm Deli, 88 NY2d 437, 444 [1996]). As a result, claimant’s papers fail to include any document(s) which may be construed as an instrument for the payment of money only.

Claimant’s motion for summary judgment in lieu of complaint is denied.



November 15, 2006
Binghamton, New York

HON. CATHERINE C. SCHAEWE
Judge of the Court of Claims


The following papers were read on claimant’s motion for summary judgment in lieu of complaint:

1) Notice of Motion filed August 21, 2006; Affidavit of Shawn Green sworn to August 15, 2006; and Memorandum of Law dated August 15, 2006 with annexed exhibits.

2) Affirmation in Opposition of Joseph F. Romani, AAG dated September 6, 2006.


[1]. This Court also has jurisdiction to hear and determine applications for leave to file a late claim (see Court of Claims Act § 10 [6]) and to treat a timely served notice of intention to file a claim as a claim (see Court of Claims Act § 10 [8]), neither of which are at issue here.

[2]. The filing of a summons and complaint or summons with notice commences an action in the Supreme and County Courts and its service confers personal jurisdiction over the defendant (see generally CPLR article 3).

[3]. CPLR 3213 has been referred to by one leading commentator as a “motion-action” which sets up a facile procedure for commencing an action and giving it quick treatment under the appropriate circumstances (see Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C3213:1).