New York State Court of Claims

New York State Court of Claims

SUMMERS v. STATE OF NEW YORK & NY PAROLE DEPT., #2008-038-581, Claim No. 113992, Motion No. M-74158


Synopsis


Claim dismissed on Court’s own motion for lack of subject matter jurisdiction. Claimant did not serve claim upon Attorney General. Permission to extend time of service (CPLR 306-b) is not available to remedy failure of service pursuant to Court of Claims Act § 11

Case Information

UID:
2008-038-581
Claimant(s):
RAMEL SUMMERS
Claimant short name:
SUMMERS
Footnote (claimant name) :

Defendant(s):
STATE OF NEW YORK & NY PAROLE DEPT.
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
113992
Motion number(s):
M-74158
Cross-motion number(s):

Judge:
W. BROOKS DeBOW
Claimant’s attorney:
NKEREUWEM UMOH, Esq.
Defendant’s attorney:
No Appearance
Third-party defendant’s attorney:

Signature date:
January 22, 2008
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)

.
Decision

This claim for damages from an allegedly unlawful confinement was filed with the Clerk of the Court on July 24, 2007. Issue was never joined, and proof of service of the claim upon the Attorney General was not filed with the Clerk of the Court (see 22 NYCRR § 206.5 [a]). On its own motion, the Court issued an Order to Show Cause, filed November 1, 2007, directing claimant to demonstrate why the claim should not be dismissed for lack of jurisdiction for failure to comply with the service requirements of Court of Claims Act § 11. Claimant’s response to the Order to Show Cause candidly concedes that the claim was not served upon the Attorney General (Umoh Affirmation, ¶ 3). Thus, the claim is jurisdictionally defective, and must be dismissed (see Finnerty v New York State Thruway Auth., 75 NY2d 721, 722-723 [1989]; Cudjoe v State of New York, 4 AD3d 322, 323 [2d Dept 2004]; Pagano v New York State Thruway Auth., 235 AD2d 408 [2d Dept 1997], lv denied 90 NY2d 804 [1997]). To the extent that claimant is requesting an extension of time to serve the claim pursuant to CPLR 306-b, that provision is inapplicable to cure the jurisdictional failure to timely serve the claim upon the Attorney General (cf. Gurley v State of New York, 173 Misc 2d 87, 90 [Ct Cl, 1997]; see 83 Siegel Prac. Rev. 4 [1999]). Claimant’s request for permission to file a late claim cannot be granted because his submission is not in the form of a motion, nor does it contain any information that would permit the Court to consider the factors set forth in Court of Claims Act § 10(6).

Inasmuch as claimant has failed to show cause why the claim should not be dismissed for lack of subject matter jurisdiction, it is

ORDERED, that, upon the Court’s own motion (M-74158), Claim No. 113992 is DISMISSED.

January 22, 2008
Albany, New York

HON. W. BROOKS DEBOW
Judge of the Court of Claims


Papers Considered
:


(1) Claim No. 113992, filed July 24, 2007;

(2) Order to Show Cause, filed November 1, 2007;

(3) Affirmation of Nkereuwem Umoh, Esq., dated January 2, 2007 [sic], with Exhibit A.