New York State Court of Claims

New York State Court of Claims

RILEY v. STATE OF NEW YORK, #2007-040-062, Claim No. 109364, Motion No. M-74072


State’s Motion to Dismiss pursuant to Court of Claims Act § 11(a)(i) granted as no proof that Claim was served upon Defendant.

Case Information

1 1.Caption amended to reflect the State of New York as the proper defendant.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
Caption amended to reflect the State of New York as the proper defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant’s attorney:
Joseph Riley, Pro Se
Defendant’s attorney:
Attorney General of the State of New YorkBy: Paul F. Cagino, Esq., AAG
Third-party defendant’s attorney:

Signature date:
November 19, 2007

Official citation:

Appellate results:

See also (multicaptioned case)


For the reasons set forth below, Defendant’s motion to dismiss the Claim based upon lack of jurisdiction is granted.

Court of Claims Act § 11(a)(i) provides that the Claim shall be filed with the Clerk of the Court and that a copy shall be served upon the Attorney General within the time period provided in the Court of Claims Act either personally or by certified mail, return receipt requested. A claim for lost or damaged property by an inmate must be filed and served upon the Attorney General within one hundred and twenty (120) days after the date the inmate exhausted his administrative remedies established by the Department of Correctional Services (Court of Claims Act § 10 [9]). The statutory requirements conditioning suit must be strictly construed (Dreger v New York State Thruway Auth., 81 NY2d 721, 724 [1992]; Rodriguez v State of New York, 307 AD2d 657 [3rd Dept 2003]).

Defendant submitted the Affirmation of Assistant Attorney General Paul F. Cagino in support of its motion. Mr. Cagino states that his office was advised the above Claim had been filed with the Court of Claims when it received a letter from the Court dated May 26, 2004, acknowledging the Court’s receipt of the Claim on May 17, 2004. In further support of its motion, Defendant submitted an Affidavit of Janet A. Barringer, a Senior Clerk in the Albany Office of the Attorney General (Ex. 1 attached to Affirmation in Support of Defendant’s Motion to Dismiss). Ms. Barringer attests that she is familiar with the record-keeping system of the Litigation Bureau/Claims Practice Group of the Attorney General’s Office regarding notices of intention to file claims and claims that are filed in the Court of Claims or received in the Attorney General’s Office. She further attests that, following a thorough search of the records of the Attorney General’s Office, she found “no record that the Claim in this matter was ever served on the Attorney General”( Barringer Affidavit, ¶ 5) .

The Clerk of the Court sent a letter to both parties dated October 11, 2007, advising them of the return date of this motion. The Court notes that the letter that was sent to Claimant at Upstate Correctional Facility in Malone, was forwarded to Washington Correctional Facility in Comstock and was returned to the Court with an unsubstantiated, handwritten notation on the envelope “deceased 10/26/04".

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). The motion to dismiss is granted and the Claim is dismissed.

November 19, 2007
Albany, New York

Judge of the Court of Claims

The following papers were read and considered by the Court on Defendant’s motion to dismiss:

Papers Numbered

Notice of Motion, Affirmation in Support
& Exhibits attached 1

Filed papers: Claim