New York State Court of Claims

New York State Court of Claims

BARNES v. THE STATE OF NEW YORK, #2008-015-034, Claim No. 113474, Motion Nos. M-74560, CM-74598


Synopsis


Claim dismissed for failure to serve Attorney General.

Case Information

UID:
2008-015-034
Claimant(s):
ARRELLO BARNES
Claimant short name:
BARNES
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
113474
Motion number(s):
M-74560
Cross-motion number(s):
CM-74598
Judge:
FRANCIS T. COLLINS
Claimant’s attorney:
Arrello Barnes, Pro Se
Defendant’s attorney:
Honorable Andrew M. Cuomo, Attorney General
By: Paul F. Cagino, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
April 30, 2008
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant, an inmate, moves to compel discovery. Defendant cross-moves for dismissal of the claim pursuant to CPLR 3211(a) (2) and (8) on the ground that the Attorney General was not served with a copy of the claim as required by Court of Claims Act §§ 10 (3) and 11 (a). This bailment claim to recover the value of certain items of personal property allegedly lost during the course of the claimant’s transfer from Great Meadow Correctional Facility to Southport Correctional Facility was filed on March 21, 2007.

As the defendant’s motion is dispositive it will be addressed first. Defendant's motion to dismiss the claim is supported by an affidavit from Janet A. Barringer, Senior Clerk in the Albany Office of the Attorney General. Ms. Barringer avers that she searched the electronic and paper files maintained by the Attorney General's office and found no record that the claim was served upon the Attorney General.

Court of Claims Act § 11(a) (i) provides, in relevant part, that a copy of the claim "shall be served upon the attorney general. . .either personally or by certified mail, return receipt requested. . . . " The failure to comply with this requirement, if not waived pursuant to Court of Claims Act §11 ( c) , is a jurisdictional defect that deprives the Court of jurisdiction (Finnerty v New York State Thruway Auth., 75 NY2d 721, 722-723 [1989]; Rodriguez v State of New York, 307 AD2d 657 [2003]).

Defendant has established that no claim was served upon the Attorney General and the claimant has come forth with no proof to the contrary. As a result, the claim is dismissed.


April 30, 2008
Saratoga Springs, New York

HON. FRANCIS T. COLLINS
Judge of the Court of Claims


The Court considered the following papers:
  1. Motion to compel dated January 31, 2008;
  2. Notice of cross motion dated February 29, 2008;
  3. Affirmation of Paul F. Cagino dated February 29, 2008 with exhibits.