New York State Court of Claims

New York State Court of Claims

SERGIO v. THE STATE OF NEW YORK, #2007-015-198, Claim No. 105553, Motion No. M-73034


Synopsis


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

Case Information

UID:
2007-015-198
Claimant(s):
ROMA SERGIO
1 1.The caption of the claim is amended sua sponte to reflect the only properly named defendant.
Claimant short name:
SERGIO
Footnote (claimant name) :

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

Third-party defendant(s):

Claim number(s):
105553
Motion number(s):
M-73034
Cross-motion number(s):

Judge:
FRANCIS T. COLLINS
Claimant’s attorney:
Roma Sergio, 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:
June 5, 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 is granted.

The claim herein seeks damages for injuries allegedly sustained on November 19, 2001 when the claimant was exposed to toxic fumes while working in the mess hall at Mt. McGregor Correctional Facility. The claim was filed in the office of the Clerk of the Court of Claims on February 1, 2002 without an accompanying affidavit of service.

Defendant's motion to dismiss the claim is supported by the affidavit of Janet A. Barringer, Senior Clerk in the Albany Office of the Attorney General. Ms. Barringer avers that she conducted a search of electronic and paper files maintained by the Attorney General's office and can find no record that the instant claim was served upon the Attorney General. The Attorney General was admittedly served with a notice of intention to file a claim on January 23, 2002 by certified mail, return receipt requested (Defendant's Exhibit C).

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. The fact that a notice of intention to file a claim was properly and timely served does not permit this Court to treat the notice of intention as a claim pursuant to Court of Claims Act § 10(8) in the absence of an application for such relief as required by the statute (Lyles v State of New York, 3 NY3d 396 [2004]; Garrand v State of New York, Ct Cl, June 30, 2006 [Claim No. 109663, Motion No. M-71354, UID # 2006-015-098] Collins, J., unreported). In any event, such an application would be untimely (see Court of Claims Act § 10(8); CPLR 214(5); Critton v State of New York, 12 AD3d 216 [2004]).

Accordingly, the claim is dismissed.


June 5, 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. Letter in opposition from Roma Sergio filed April 2, 2007.