New York State Court of Claims

New York State Court of Claims

BROWN v. THE STATE OF NEW YORK, #2007-015-193, Claim No. 111579, Motion No. M-73083


Synopsis


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

Case Information

UID:
2007-015-193
Claimant(s):
ROBERT A. BROWN
1 1.The caption is amended sua sponte to reflect the only properly named defendant.
Claimant short name:
BROWN
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :
The caption is amended sua sponte to reflect the only properly named defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
111579
Motion number(s):
M-73083
Cross-motion number(s):

Judge:
FRANCIS T. COLLINS
Claimant’s attorney:
Robert A. Brown, Pro SeNo Appearance
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 for failure to serve the claim upon the Attorney General as required by Court of Claims Act § 11(a) is granted. Claimant seeks damages for acts of medical malpractice which allegedly accrued on March 2, 2005 while he was an inmate at Great Meadow Correctional Facility. The claim was filed on November 2, 2005 and the claimant's affidavit of service indicates that the claim was served by delivering it to the Medical Department at Great Meadow Correctional Facility on October 27, 2005. Defendant's motion to dismiss the claim is supported by an affidavit from Janet A. Barringer, Senior Clerk in the Albany Office of the Attorney General. Ms. Barringer avers that she searched the electronic and paper files maintained by the Attorney General's office and can find no record that this claim was ever served upon the Attorney General.

Court of Claims Act § 11(a)(i) 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]).

Defendant has established that no claim was served upon the Attorney General as required and the claimant's affidavit of service of the claim lends support for this contention.

Accordingly, 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 21, 2007;
  2. Affirmation of Belinda A. Wagner dated March 21, 2007 with exhibit;
  3. Affidavit of Janet A. Barringer sworn to March 20, 2007 with exhibit.