New York State Court of Claims

New York State Court of Claims

BELLAMY v. SUPERINTENDENT WEST. AND CAPT. WENDERLICH, #2008-010-021, Claim No. 112668, Motion Nos. M-75156, CM-75199


Synopsis


Defendant’s motion for dismissal granted. jurisdictionally defective and inmate claimant’s motion for summary judgment moot.

Case Information

UID:
2008-010-021
Claimant(s):
JEROME BELLAMY
Claimant short name:
BELLAMY
Footnote (claimant name) :

Defendant(s):
SUPERINTENDENT WEST. AND CAPT. WENDERLICH
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
112668
Motion number(s):
M-75156
Cross-motion number(s):
CM-75199
Judge:
Terry Jane Ruderman
Claimant’s attorney:
JEROME BELLAMYPro Se
Defendant’s attorney:
HON. ANDREW M. CUOMO
Attorney General for the State of New YorkBy: Elyse Angelico, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
July 17, 2008
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers numbered 1-3 were read and considered by the Court on claimant’s motion for summary judgment and defendant’s cross-motion to dismiss:
Plaintiff’s Summary Judgment Motion.....................................................................1

Notice of Cross-Motion, Attorney’s Supporting Affirmation and Exhibits..............2

“Affirmation” in Further Support of Summary Judgment............................................3

Court of Claims Act §11 mandates that any party seeking to commence an action against the State must file the claim with the Clerk of the Court and serve a copy of the claim upon the Attorney General. The statute further provides that service by mail upon the Attorney General must be sent certified, return receipt requested. The Court of Appeals has held that these statutory requirements must be strictly construed and that both filing and service must occur within the applicable limitations period as a pre-condition of a suit against the State (see Dreger v New York State Thruway Auth., 81 NY2d 721, 724). Where claimant has failed to meet the statutory prerequisites, the claim must be dismissed for lack of subject matter jurisdiction (see Finnerty v New York State Thruway Auth., 75 NY2d 721, 723; Rodriguez v State of New York, 307 AD2d 657).

Here, a Notice of Intention to File a Claim was served upon defendant on July 14, 2005 (Defendant’s Ex. A.) and a claim was subsequently filed with the Court on August 21, 2006. Defendant affirms that, upon a thorough search of its records, a claim was never served upon defendant (Defendant’s Exs. A, B). Indeed, claimant admits in his Affirmation in Further Support of Summary Judgment at ¶ 2, that he did not serve the claim upon defendant by certified mail because he did not have sufficient funds in his inmate account. Thus, it is undisputed that a claim was never properly served upon defendant.

Accordingly, defendant’s cross-motion is GRANTED and the claim is dismissed, thereby rendering claimant’s motion for summary judgment moot because the Court cannot grant summary judgment on a claim over which the Court has no jurisdiction. Thus, claimant’s motion is DENIED.


July 17, 2008
White Plains, New York

HON. TERRY JANE RUDERMAN
Judge of the Court of Claims