New York State Court of Claims

New York State Court of Claims

VAZQUEZ/ARIOLA v. STATE OF NEW YORK, #2008-018-629, Claim No. 114362, Motion Nos. M-74350, CM-74470


Movant’s motion sought joinder with claimant Vazquez’s claim which has been dismissed. Accordingly, movant’s motion must be denied as moot.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):
Claimant’s attorney:
Jose Vazquez
Pro Se
For Movant:
Christopher D. AriolaPro Se
Defendant’s attorney:
Attorney General of the State of New York
By: Heather R. Rubinstein, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
August 18, 2008

Official citation:

Appellate results:

See also (multicaptioned case)


By motion (M-74350) filed December 21, 2007, Mr. Ariola seeks to join as a claimant in

the claim entitled, Jose Vazquez v State of New York, Claim No. 114362, filed October 17, 2007. The State opposes the motion and has made a cross-motion (CM-74470) to dismiss the Vazquez claim. No opposing documents have been received in response to defendant’s cross-motion. Given that the outcome of the cross-motion bears upon the viability of Mr. Ariola’s requested relief, the Court will first consider the cross-motion.
Cross-Motion No. CM-74470
Defendant brings a motion to dismiss claimant Vazquez’s claim on the grounds that no claim was ever served upon the Attorney General. Although defendant acknowledges that claimant Vazquez served a notice of intention, no claim was served. Janet A. Barringer, Senior Clerk in the Albany Office of the Attorney General’s office submits, by affidavit, that she is familiar with the record keeping system in the Litigation Bureau/Claims Practice Group of the Office of the Attorney General. Ms. Barringer states that she performed a thorough search of the records in the Litigation Bureau/Claims Practice Group and that no claim was ever served upon the Attorney General in this matter.

Mr. Vazquez did file a claim with the Clerk of this Court on October 17, 2007, seeking damages as a result of being violated for parole, strip-frisked and placed in Special Housing at Jamesville Correctional Facility. He alleges that the officers withheld his eyeglasses and provided no treatment for his medical condition. The claim states that the acts took place at the New York State Department of Parole, 333 East Washington Street in Onondaga County. The claim accrued on January 26, 2007. The claim names as defendants the New York State Department of Parole, Crouse Irving Memorial Hospital, The Department of Correctional Services, Onondaga County Social Services Department, Onondaga Justice Center Jail, and Jamesville Correctional Facility. No affidavit of service for the claim was filed. Claimant Vazquez has not responded to this motion.

The Court of Claims is a Court of limited jurisdiction, having the authority to hear only those claims specifically authorized by statute, and only those claims brought against the State of New York (Court of Claims Act § 9). The requirements for timely filing and service of a claim, are strictly construed jurisdictional prerequisites to the institution and maintenance of an action against the State (Buckles v State of New York, 221 NY 418; Byrne v State of New York, 104 AD2d 782, lv denied 64 NY2d 607). Court of Claims Act §§ 10 and 11(a)(i) require service of the claim upon the Attorney General. Here, no claim has been served upon the Attorney General. However, if a notice of intention has been timely and properly served upon the Attorney General, a claimant has two years from the date of accrual to file and serve a claim (Court of Claims Act

§ 10[3]). This would allow claimant to serve the claim until January 26, 2009, if the notice of intention served is sufficient.

The notice of intention defendant has attached to its motion papers reflects it was served on August 1, 2007 for a claim which arose on June 20, 2007. The notice of intention complains incoherently about the “various conditions and events leading to a Parole [sic] which has been politically instigated by virtue of neglect and the violation of the Constitution...” The ramblings set forth in the notice of intention do not provide notice of what the State allegedly did wrong and it has a different accrual date than set forth in the claim filed October 17, 2007.

Court of Claims Act § 11(b) requires in pertinent part that:

The claim shall state the time when and the place where such claim arose, the nature of same, and the items of damage or injuries claimed to have been sustained and except in an action to recover damages for personal injury, medical, dental or podiatric malpractice or wrongful death, the total sum claimed...The notice of intention to file a claim shall set forth the same matters except that the items of damage or injuries and the sum claimed need not be stated...

The notice of intention must set forth a statement with sufficient definiteness to enable the State to promptly investigate the allegations and ascertain its potential liability under the circumstances so as to not mislead, deceive, or prejudice the rights of the State; “absolute exactness” is not required (Heisler v State of New York, 78 AD2d 767; Grumet v State of New York, 256 AD2d 441, 442 [2d Dept 1998]).

Here, the notice of intention claimant Vazquez served on August 1, 2007 does not provide notice of any facts which would permit the State to conduct an investigation. The Court does not find that this notice of intention extended claimant’s time for filing and serving a claim. Since no claim was timely filed[1] or served upon the defendant, the claim must be dismissed. The failure to serve the Attorney General or timely file the claim results in a failure of subject matter jurisdiction, which precludes this Court from hearing the claim (Buckles, 221 NY at 424; Matter of Dreger v New York State Thruway Authority, 177 AD2d 762, 763; Byrne, 104 AD2d at 783).

Accordingly, the claim is DISMISSED.
Motion No. M-74350
Since Mr. Ariola’s motion sought joinder with claimant Vazquez’s claim which has been dismissed, Mr. Ariola’s motion must be denied as moot.

August 18, 2008
Syracuse, New York

Judge of the Court of Claims

The Court has considered the following documents in deciding these motions:


1. Notice of Motion for Joinder of Claimant.

2. Affidavit of Christopher D. Ariola, sworn to November 14, 2007.

3. Letter from Christopher D. Ariola dated February 8, 2008.

4. Letter from Heather R. Rubinstein, Esquire, Assistant Attorney General, dated February 6, 2008.
5. Affirmation in opposition of Heather R. Rubinstein, Esquire, Assistant

Attorney General, with exhibit attached.


6. Notice of Cross-Motion.

7. Affirmation of Heather R. Rubinstein, Esquire, Assistant Attorney General,

in support, with exhibits attached thereto.

[1]. The claim was also not timely filed with the Clerk of the Court since without a timely notice of intention the claim was not filed within 90 days, using either the accrual date set forth in the claim, January 26, 2007, or the notice of intention June 20, 2007.