New York State Court of Claims

New York State Court of Claims

LOPRESTI v. THE STATE OF NEW YORK, #2007-042-521, Claim No. 113721, Motion No. M-73565


Synopsis


Defendant brought on a pre-answer motion to dismiss, seeking to dismiss the claim for lack of subject matter jurisdiction and/or personal jurisdiction over the defendant. The claim is solely directed at the Fulton County Department of Social Services, which is not an agency of the State of New York. Defendant’s motion is granted and the claim is dismissed.

Case Information

UID:
2007-042-521
Claimant(s):
SANTO A. LOPRESTI
Claimant short name:
LOPRESTI
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
113721
Motion number(s):
M-73565
Cross-motion number(s):

Judge:
NORMAN I. SIEGEL
Claimant’s attorney:
SANTO A. LOPRESTI, PRO SE
Defendant’s attorney:
HON. ANDREW M. CUOMO
Attorney General of the State of New York
By: JOEL L. MARMELSTEIN, ESQ.Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
July 31, 2007
City:
Utica
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

This pre-answer motion to dismiss is brought by the defendant seeking to dismiss the claim for lack of subject matter and/or personal jurisdiction over the defendant. The court has considered the following papers:
  1. Notice of Motion, filed June 13, 2007
  2. Affirmation of Joel L. Marmelstein, Esq., dated June 12, 2007
  3. "Answer Affadavit" [sic] of Santo A. Lopresti, dated June 29, 2007
___________________________________________


Defendant, by a pre-answer motion to dismiss, seeks to dismiss the claim for lack of subject matter and/or personal jurisdiction over the defendant. The claim, which defendant correctly characterizes as a narrative, is solely directed at the Fulton County Department of Social Services, which is not an agency of the State of New York or otherwise subject to legal action under the provisions of the Court of Claims Act (see Court of Claims Act § 9; Fuller v State of New York, 11 AD3d 365).

Claimant has submitted an unsworn “affadavit” [sic] in which he concedes that this case should be in Fulton County Supreme Court. While claimant goes on to make vague reference to potential state defendants (“this case . . . has aspects that involve the actions of different departments outside Fulton County and that upon providing the evidence would show that there is precedence [sic] and merit to name New York State as the Defendant”), there is no showing of any state action from which to infer a claim against the defendant.

Accordingly, this claim is dismissed for lack of subject matter jurisdiction.



July 31, 2007
Utica, New York

HON. NORMAN I. SIEGEL
Judge of the Court of Claims