New York State Court of Claims

New York State Court of Claims

WASLEY v. DR. LEE AT CLINTON CORR. FAC. MEDICAL DEPT., #2007-039-017, Claim No. 108965, Motion No. M-73135


Synopsis


After considering the strict construction that must be afforded the service requirements of Section 11 (a) of the Court of Claims Act, together with defendant’s offer of sufficient proof to establish that it never received service of the claim and the absence of proof in opposition, the Court concluded that it lacks jurisdiction of the claim and that the claim must therefore be dismissed.

Case Information

UID:
2007-039-017
Claimant(s):
RICHARD WASLEY
Claimant short name:
WASLEY
Footnote (claimant name) :

Defendant(s):
DR. LEE AT CLINTON CORR. FAC. MEDICAL DEPT.
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
108965
Motion number(s):
M-73135
Cross-motion number(s):

Judge:
JAMES H. FERREIRA
Claimant’s attorney:
Richard Wasley, Pro Se
Defendant’s attorney:
Hon. Andrew M. Cuomo
Attorney General of the State of New York
By: Paul F. CaginoAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
May 3, 2007
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant, an inmate at Clinton Correctional Facility at the time of the alleged circumstances, filed a claim during February 2004 alleging acts or omissions by “Dr. Lee at Clinton Correctional Facility Medical Department” (hereinafter defendant). Defendant brings the instant motion to dismiss pursuant to CPLR § 3211(a) (2) and (8) on the grounds that the Court lacks subject matter jurisdiction and personal jurisdiction over the State because the Attorney General’s Office was not served with the claim as required by Court of Claims Act §§ 10 (3) and 11 (a). Court of Claims Act § 11 (a) provides, in relevant part, that “a copy [of the claim] shall be served upon the attorney general.” It is well established that “the State as sovereign may not be sued except with its consent, that it may attach such terms and conditions to its consent as the Legislature deems proper, and that such terms and conditions are jurisdictional requirements” (Finnerty v New York State Thruway Auth., 75 NY2d 721, 723 [1989]; see also Dreger v New York State Thruway Auth., 81 NY2d 721, 724 [1992]). The requirements of section 11 of the Court of Claims Act governing filing, service and contents of a claim or notice of intention are jurisdictional in nature and must be strictly construed (Finnerty, supra at 722-723; Lurie v State of New York, 73 AD2d 1006, 1007 [3d Dept 1980], affd 52 NY2d 849 [1981]). Moreover, claimant has the burden of establishing proper service by a preponderance of the evidence when defendant properly raises the jurisdictional issue (see Kearney v Neurosurgeons of N.Y., 31 AD3d 390, 391 [2006]; D’Ambra v Haynor, 293 AD2d 858, 859 [2002]; Taylor v State of New York, Ct Cl, July 17, 2006 [unreported, claim no. 109914, Scuccimarra, J., UID No. 2006-030-015]; Court of Claims Act § 11 [c]).

In support of its motion to dismiss, defendant offers the affidavit of Janet A. Barringer, a Senior Clerk in the Albany Office of the Attorney General of the State of New York. Barringer states that she is “familiar with the record keeping system of the Litigation Bureau/Claims Practice Group of the Office of the Attorney General regarding notices of intention to file claims and claims that are filed in the Court of Claims or received in the Office of the Attorney General.” She attests that, based upon her review of the relevant paper and electronic files of the Litigations Bureau/Claims Practice Group, a copy of the claim was never served upon the Office of the Attorney General of the State of New York. She further provides that only one relevant document was found - a letter dated March 9, 2004 from the Court of Claims to the Office of the Attorney General of the State of New York acknowledging receipt of the claim by the Court on February 27, 2004. Claimant has not provided the Court with any opposition to defendant’s motion. Considering the strict construction that must be afforded the service requirements of Section 11 (a) of the Court of Claims Act, that defendant has offered sufficient proof to establish that the claim was not served, and that claimant has not opposed the motion, the Court is constrained to find that the claim must be dismissed on the ground that the Court lacks jurisdiction due to claimant’s failure to serve the claim upon defendant.

Accordingly, it is hereby ORDERED that Motion No. M-73135 is hereby granted and the claim is dismissed.

May 3, 2007
Albany, New York

HON. JAMES H. FERREIRA
Judge of the Court of Claims


Papers Considered:
  1. Notice of Motion to Dismiss Claim dated March 28, 2007; and
  2. Affirmation in Support of Motion to Dismiss Claim affirmed on March 28, 2007, with exhibits.