New York State Court of Claims

New York State Court of Claims

JONES v. THE STATE OF NEW YORK, #2008-015-103, Claim No. 111740, Motion No. M-75468


Synopsis


Claim was dismissed for failure to serve the Attorney General.

Case Information

UID:
2008-015-103
Claimant(s):
KEVIN JONES
1 1.The caption of this claim is amended sua sponte to reflect the only properly named defendant.
Claimant short name:
JONES
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :
The caption of this claim is amended sua sponte to reflect the only properly named defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
111740
Motion number(s):
M-75468
Cross-motion number(s):

Judge:
FRANCIS T. COLLINS
Claimant’s attorney:
Kevin Jones, Pro SeNo Appearance
Defendant’s attorney:
Honorable Andrew M. Cuomo, Attorney General
By: Paul F. Cagino, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
December 8, 2008
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Defendant moves to dismiss the claim pursuant to CPLR 3211(a) (2) and (8) on the ground that it was not served with a copy of the claim as required by Court of Claims Act § 10 (3) and § 11 (a). On March 29, 2004 the claimant served a notice of intention to file a claim upon the Attorney General by certified mail, return receipt requested (Exhibit C). The notice of intention alleged that the claimant was assaulted by a correction officer at Great Meadow Correctional Facility on February 28, 2004. A claim relating to the same facts set forth in the notice of intention was thereafter filed with the Court on December 15, 2005.

Defendant's motion to dismiss the claim is supported by the affidavit of Janet A. Barringer, Senior Clerk in the Albany Office of the Attorney General, in which Ms. Barringer avers that she has searched the electronic and paper files maintained by the Attorney General's office and found no record that this claim was served upon the Attorney General.

Court of Claims Act § 11 (a)(i) provides that a claim shall be filed with the Clerk of the Court and served upon the Attorney General either personally or by certified mail, return receipt requested. The Court of Appeals has noted in interpreting this provision that “statutory requirements conditioning suit must be strictly construed” (Dreger v New York State Thruway Auth., 81 NY2d 721, 724 [1992]). The failure to comply with this requirement, if not waived pursuant to Court of Claims Act §11 ( c), is a defect which deprives the Court of jurisdiction and requires dismissal of the claim (Rodriguez v State of New York, 307 AD2d 657 [2003]).

Defendant has established that no claim was served upon the Attorney General and the time to do so has now expired (see Court of Claims Act § 10 [3-b]). As a result, the claim is dismissed.



December 8, 2008
Saratoga Springs, New York

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


The Court considered the following papers:
  1. Notice of motion dated August 27, 2008;
  2. Affirmation of Paul F. Cagino dated August 27, 2008;
  3. Affidavit of Janet A. Barringer sworn to August 26, 2008 with exhibits.