New York State Court of Claims

New York State Court of Claims

FLYNN v. NEW YORK STATE POLICE and BCI,


ALL JOHN DOE’S and JANE DOE’S, #2007-038-550, Claim No. 112188, Motion No. M-71870


Synopsis


No proof of service of claim upon Attorney General. Claim dismissed for lack of jurisdiction.

Case Information

UID:
2007-038-550
Claimant(s):
BRUCE C. FLYNN
Claimant short name:
FLYNN
Footnote (claimant name) :

Defendant(s):
NEW YORK STATE POLICE and BCI,ALL JOHN DOE’S and JANE DOE’S
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
112188
Motion number(s):
M-71870
Cross-motion number(s):

Judge:
W. BROOKS DEBOW
Claimant’s attorney:
BRUCE C. FLYNN, Pro se
Defendant’s attorney:
ANDREW M. CUOMO, Attorney General of the State of New York
By: Michael C. Rizzo, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
May 17, 2007
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant seeks monetary damages resulting from certain alleged acts of agents of the New York State Police. Defendant moves to dismiss the claim on jurisdictional grounds. Claimant opposes the motion.

Court of Claims Act §§ 10 (3) and 11 (a) (i) require, inter alia, that a copy of the claim or the notice of intention to file a claim be timely served upon the Attorney General. It is well established that the filing and service requirements of the Court of Claims Act are jurisdictional and must be strictly construed (see Finnerty v New York State Thruway Auth., 75 NY2d 721, 722-723 [1989]) and that the failure to comply with those requirements is a defect that deprives the Court of jurisdiction and requires dismissal of the claim (see id.; Martinez v State of New York, 282 AD2d 580 [2d Dept 2001], lv denied 96 NY2d 720 [2001]; Vespucci v State of New York, UID # 2007-038-505, Claim # 112571, Motion No. M-72230, DeBow, J. [Feb. 16, 2007]; Davis v State of New York, UID # 2006-042-503, Claim # 107278, Motion # M-72510, Siegel, J.,[Jan. 9, 2007]; Farnsworth v State of New York, UID # 2006-031-091, Claim # 110822, Motion # M-71631, Minarik, J. [Dec. 29, 2006]).

Claimant’s affidavit of service (see Rizzo Affidavit, Exhibit A) reveals that claimant served a “Notice of Claim” upon “Captain Laurie Wagner” at the headquarters of the New York State Police in Albany, New York, and not upon the Attorney General. The Court notes that a process server’s invoice identifying this claim is attached to an affidavit of service that states the caption of a different claim, and further, that the dates on the invoice and the affidavit of service do not correlate with one another. Although the process server’s invoice states that the instant claim was served on the Attorney General on May 26, 2006, the Court is unable to conclude from these documents that this claim was served upon the Attorney General. Thus, there is no documentary proof of service upon the Attorney General of this claim or a notice of intention to file this claim. Further, claimant’s affidavit submitted in opposition to defendant’s motion does not assert that service was made upon the Attorney General. In the absence of proof or sworn allegation that such service was made, the Court concludes that the claim was not served upon the Attorney General, and the claim must be dismissed for lack of jurisdiction.

Defendant’s remaining arguments in support of its motion to dismiss need not be addressed.

Accordingly, Claim #112188 is DISMISSED.



May 17, 2007
Albany, New York

HON. W. BROOKS DEBOW
Judge of the Court of Claims


Papers considered
:

(1) Notice of Motion to Dismiss, dated June 2, 2006;

(2) Affidavit of Michael C. Rizzo, AAG, sworn to June 2, 2006, with exhibits A-B;

(3) Notice of Motion “Not to Dismiss,” dated June 6, 2006;

(4) “General Affidavit” of Bruce C. Flynn, sworn to June 7, 2006;

(5) Invoice to Bruce C. Flynn from Alexander, Poole & Company, Inc. dated May 30, 2006,

with attached affidavit of service sworn to June 5, 2006, filed June 13, 2006.