New York State Court of Claims

New York State Court of Claims

FRANKLIN v. STATE OF NEW YORK, #2008-040-021, Claim No. 108590, Motion No. M-74663


State’s motion to dismiss pursuant to Court of Claims Act § 11(a) granted as Claimant failed to refute Defendant’s proof that he did not serve Claim on Defendant as required.

Case Information

1 1.Caption amended to reflect the State of New York as the proper defendant.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
Caption amended to reflect the State of New York as the proper defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant’s attorney:
Benjamin Franklin, Pro Se
Defendant’s attorney:
Attorney General of the State of New YorkBy: Paul F. Cagino, Esq., AAG
Third-party defendant’s attorney:

Signature date:
April 28, 2008

Official citation:

Appellate results:

See also (multicaptioned case)


For the reasons set forth below, Defendant’s motion to dismiss the Claim based upon lack of jurisdiction is granted.

Court of Claims Act § 11(a)(i) provides that the Claim shall be filed with the Clerk of the Court and that a copy shall be served upon the Attorney General within the time period provided in the Court of Claims Act either personally or by certified mail, return receipt requested. A claim for personal injuries caused by the intentional tort of a State employee must be filed and served upon the Attorney General within 90 days from the date of accrual unless a written Notice of Intention to File a Claim was served upon the Attorney General within such time period. In that case, the Claim itself was required to be filed and serve upon the Attorney General within one year after the accrual of the Claim (Court of Claims Act § 10 [3-b]). The statutory requirements conditioning suit must be strictly construed (Dreger v New York State Thruway Auth., 81 NY2d 721, 724 [1992]; Rodriguez v State of New York, 307 AD2d 657 [3d Dept 2003]).

Defendant submitted the Affirmation of Assistant Attorney General Paul F. Cagino in support of its motion. Mr. Cagino states that his office was advised the above Claim had been filed with the Court of Claims when it received a letter from the Court dated December 18, 2003, acknowledging the Court’s receipt of the Claim on November 28, 2003. In further support of its motion, Defendant submitted an Affidavit of Janet A. Barringer, a Senior Clerk in the Albany Office of the Attorney General (Ex. 1 attached to Affirmation in Support of Defendant’s Motion to Dismiss). Ms. Barringer attests that she is familiar with the record-keeping system of the Litigation Bureau/Claims Practice Group of the Attorney General’s Office regarding notices of intention to file claims and claims that are filed in the Court of Claims or received in the Attorney General’s Office. She further attests that, following a thorough search of the records of the Attorney General’s Office, she found “no record that the Claim in this matter was ever served on the Attorney General”( Barringer Affidavit, ¶ 5) .

The Clerk of the Court sent a letter to both parties dated March 13, 2008, advising them of the return date of this motion. The Court notes that the letter was sent to Claimant at Attica Correctional Facility in Attica, New York (hereinafter Attica) and Defendant also served its motion papers upon Claimant at Attica. Claimant has not submitted papers in opposition to the State’s motion.

The Court finds that Defendant has offered sufficient proof in support of its motion to establish that the Claim was not served upon the Attorney General. Claimant has not offered any proof in opposition to the motion and, accordingly, the Court is compelled to find that it lacks jurisdiction pursuant to Court of Claims Act § 11(a)(i). The motion to dismiss is granted and the Claim is dismissed. The Court notes that by letter dated February 11, 2008, the parties were notified that the trial of this action was scheduled May 8, 2008 at Clinton Correctional Facility in Dannemora, New York. That trial is now unnecessary.

April 28, 2008
Albany, New York

Judge of the Court of Claims

The following papers were read and considered by the Court on Defendant’s motion to dismiss:

Papers Numbered

Notice of Motion, Affirmation in Support
& Exhibits attached 1