New York State Court of Claims

New York State Court of Claims

THOMAS v. THE STATE OF NEW YORK, #2007-015-195, Claim No. 109426, Motion No. M-73033


Synopsis


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

Case Information

UID:
2007-015-195
Claimant(s):
VICTOR KEVEN THOMAS
Claimant short name:
THOMAS
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
109426
Motion number(s):
M-73033
Cross-motion number(s):

Judge:
FRANCIS T. COLLINS
Claimant’s attorney:
Victor Keven Thomas, Pro Se
Defendant’s attorney:
Honorable Andrew M. Cuomo, Attorney General
By: Michael T. Krenrich, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
May 25, 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, an inmate acting pro se, alleges that the amount charged to his inmate account for mailing two bags of personal belongings from Great Meadow Correctional Facility to Mid-State Correctional Facility on September 24, 2003 was excessive and seeks damages in the amount of $31.34. The claim was filed with the Clerk of the Court of Claims on June 2, 2004. No affidavit of service of the claim was filed.

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 has searched the electronic and paper files maintained by the Attorney General's office and found no record that this instant claim was ever served upon the Attorney General. She states that an unverified notice of intention to file a claim was received on June 3, 2004 and rejected as a nullity that same day (Defendant's Exhibit C). Thereafter, a verified notice of intention to file a claim was received on June 14, 2004 (Defendant's Exhibit D).

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 established that no claim was served upon the Attorney General as required and the claimant has not opposed the instant motion . In addition, the notice of intention to file a claim served by certified mail, return receipt on June 14, 2004 was untimely (see Court of Claims Act § 10 [3] and § 10 [3-b]).

Accordingly, the claim is dismissed.


May 25, 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 8, 2007;
  2. Affirmation of Michael T. Krenrich dated March 8, 2007 with exhibits;
  3. Affidavit of Janet A. Barringer sworn to March 5, 2007.