New York State Court of Claims

New York State Court of Claims

CHESTNUT v. THE STATE OF NEW YORK, #2007-015-191, Claim No. 110710, Motion No. M-73053


Synopsis


Defendant's motion to dismiss claim for failure the Attorney General was granted.

Case Information

UID:
2007-015-191
Claimant(s):
MICHAEL CHESTNUT
Claimant short name:
CHESTNUT
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
110710
Motion number(s):
M-73053
Cross-motion number(s):

Judge:
FRANCIS T. COLLINS
Claimant’s attorney:
Michael Chestnut, Pro Se
Defendant’s attorney:
Honorable Andrew M. Cuomo, Attorney General
By: Belinda A. Wagner, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
May 24, 2007
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Defendant's motion to dismiss this claim for failure to serve the Attorney General is granted. The claim dated March 28, 2005 alleges an accrual date of February 3, 2005[1] and was filed in the Court of Claims on March 31, 2005. The affidavit of service attached to the claim is, for the most part, blank[2].

In support of its motion to dismiss the defendant submitted an affidavit from Janet A. Barringer, Senior Clerk at the Albany Office of the Attorney General, in which she states that the Attorney General received a copy of a letter from the Court of Claims dated April 18, 2005, which was directed to the claimant, acknowledging receipt of the claim. On January 25, 2005 the Attorney General received by regular mail a "Notice of Intention To File A Claim" which sets forth an accrual date of December 27, 2004. On February 3, 2005 the Attorney General received by certified mail, return receipt requested a "Notice of Intention To File A Claim" which also sets forth an accrual date of December 27, 2004. On March 7, 2005 the Attorney General received by certified mail a "Notice of Intention To File A Claim" which sets forth an accrual date of December 18, 2004. None of the aforementioned notices of intention to file a claim relate to the subject claim.

Court of Claims Act § 11(a) provides, in relevant part, that a copy of the claim "shall be served upon the attorney general...either personally or by certified mail, return receipt requested...". This requirement is jurisdictional in nature and, as such, must be strictly construed (see Finnerty v New York State Thruway Auth., 75 NY2d 721, 722 [1989]; Commack Self-Serv. Kosher Meats v State of New York, 270 AD2d 687 [2000]).

No affidavit of service or any other proof that the claim was served on the Attorney General has been submitted in opposition to this motion. Claimant's failure to comply with the requirements of Court of Claims Act § 11 with respect to service of the claim requires that it be dismissed.

Accordingly, for the reasons set forth above, the claim is dismissed.


May 24, 2007
Saratoga Springs, New York

HON. FRANCIS T. COLLINS
Judge of the Court of Claims


The Court considered the following papers:
  1. Notice of motion dated March 13, 2007;
  2. Affirmation of Belinda A. Wagner dated March 13, 2007 with exhibit;
  3. Affidavit of Janet Barringer sworn to March 13, 2007 with exhibits.

[1].The claim states the following: "I was given a ticket on 2-3-05 and it was reversed on March 10-05 (sic) and I'm still being punished for the same ticket. Chestnut Michael Accrued on the 2-3-05".
[2].The affidavit of service does not indicate what or who was served, only that it was served by certified mail, return receipt requested .