New York State Court of Claims

New York State Court of Claims

ARCE v. STATE OF NEW YORK, #2007-039-037, Claim No. 109207, Motion No. M-73313


Synopsis


Defendant’s motion to dismiss the claim granted. Defendant offered satisfactory proof in support of its motion to show that claimant failed to serve the Attorney General with a copy of his claim, and claimant did not offer any proof in opposition to the motion. Accordingly, the Court lacked subject matter jurisdiction of the claim pursuant to Court of Claims Act § 11 (a) (I).

Case Information

UID:
2007-039-037
Claimant(s):
JULIO ARCE
Claimant short name:
ARCE
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
109207
Motion number(s):
M-73313
Cross-motion number(s):

Judge:
JAMES H. FERREIRA
Claimant’s attorney:
Julio Arce, pro se
Defendant’s attorney:
Hon. Andrew M. Cuomo
Attorney General of the State of New York
By: Eileen E. BryantAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
August 31, 2007
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant Julio Arce, an inmate at Clinton Correctional Facility at the time of the circumstances alleged herein, filed a claim with the Clerk of the Court of Claims on April 19, 2004. Claimant alleges, among other things, that during December 2003 he maintained various magazine subscriptions and that prison officials failed to provide him with the magazines while he was away from the prison attending a court appearance. Defendant now moves the Court for an order dismissing the claim on the ground that the Court lacks jurisdiction pursuant to Court of Claims Act § 11 (a) because claimant failed to serve the Attorney General with a copy of the claim.

Court of Claims Act § 11 (a) (i ) provides, in relevant part, that “[t]he claim shall be filed with the clerk of the court . . . and . . . a copy shall be served upon the attorney general within the times hereinbefore provided for filing with the clerk of the court either personally or by certified mail, return receipt requested.” The claim must “be filed and served upon the attorney general within ninety days after the accrual of [the] claim, unless . . . within such time” a notice of intention to file a claim is served upon the attorney general, then the claim must “be filed and served upon the attorney general within two years after the accrual of [the] claim” (Court of Claims Act § 10 [3]). Moreover, the “ ‘statutory requirements conditioning suit must be strictly construed’ ” (Rodriguez v State of New York, 307 AD2d 657 [2003], quoting Dreger v New York State Thruway Auth., 81 NY2d 721, 724 [1992]).

In support of its motion, defendant offers the affirmation of Assistant Attorney General Eileen E. Bryant. Bryant states that she discovered the above claim had been filed with the Court of Claims when her office received a letter from the Court dated May 5, 2004, acknowledging its receipt of the claim on April 19, 2004. In further support of its motion, defendant offers the affidavit of Janet A. Barringer, Senior Clerk with the Attorney General of the State of New York, sworn to on April 30, 2007. Barringer attests that she is familiar with the recordkeeping system of the Claims Practice Group of the Attorney General’s Office regarding the filing and service of claims. She further attests that, following a thorough search of the records of the Attorney General’s Office, there is “no record that the [c]laim in this matter was ever served on the Attorney General.” Additionally, on May 2, 2007 defendant served a copy of its motion on claimant, as evidenced by the affidavit of service which is annexed to the motion papers.
The Court finds that defendant has offered sufficient proof in support of its motion to establish that the claim was not served upon the Attorney General. Claimant has not offered any proof in opposition to the motion and, accordingly, the Court is compelled to find that it lacks jurisdiction pursuant to Court of Claims Act § 11 (a) (i).

Accordingly, it is hereby ordered that M-73313 is granted and the claim is dismissed.


August 31, 2007
Albany, New York

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


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