New York State Court of Claims

New York State Court of Claims

JACKSON v. STATE OF NEW YORK, #2008-042-525, Claim No. 110896, Motion No. M-75643


Synopsis


This is a motion brought by the defendant to dismiss the claim pursuant to CPLR Rule 3211 (a) (2) and (8) for lack of personal and subject matter jurisdiction. The motion is unopposed. The court grants the defendant’s motion and dismisses the claim.

Case Information

UID:
2008-042-525
Claimant(s):
HAROLD E. JACKSON
Claimant short name:
JACKSON
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
110896
Motion number(s):
M-75643
Cross-motion number(s):

Judge:
NORMAN I. SIEGEL
Claimant’s attorney:
HAROLD E. JACKSON, PRO SE
Defendant’s attorney:
HON. ANDREW M. CUOMO
Attorney General of the State of New York
By: JOEL L. MARMELSTEIN, ESQ.Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
November 24, 2008
City:
Utica
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

This matter comes before the court on a motion by the defendant to dismiss the claim pursuant to CPLR Rule 3211 (a) (2) and (8) for lack of personal and subject matter jurisdiction. The motion is unopposed. The court has considered the following papers:
  1. Notice of Motion, filed October 6, 2008
  2. Affirmation of Joel L. Marmelstein, Esq., dated October 3, 2008
  3. Affidavit of Janet A. Barringer, sworn to September 19, 2008
  4. Exhibits A - B, annexed to the moving papers
________________________________________


The defendant argues that the claim was not served upon the Attorney General as required by Court of Claims Act § 10 (3) and Court of Claims Act § 11 (a). According to a supporting affidavit by a Senior Clerk in the Albany Office of the Attorney General, there is no record of this claim ever being served upon the Attorney General.

Court of Claims Act § 11 (a) (i) specifically provides that:

[t]he claim shall be filed with the clerk of the court; and, except in the case of a claim for the appropriation by the state of lands, a copy shall be served upon the attorney general within the times hereinbefore provided for filing with the clerk of the court either personally or by certified mail, return receipt requested . . . .


The law is well established that the “requirements of . . . section 11 of the Court of Claims Act are jurisdictional in nature and, therefore, must be strictly construed” (Finnerty v New York State Thruway Authority, 75 NY2d 721, 722, citing with favor, Buckles v State of New York, 221 NY 418, 423 - 424). In Finnerty, where the Attorney General had not been properly served under Court of Claims Act § 11, the court found that the failure to properly serve under Section 11 resulted “not in a failure of personal jurisdiction . . . but in a failure of subject matter jurisdiction which may not be waived.” (Finnerty v New York State Thruway Authority, 75 NY2d 721, 723).

Based upon the unopposed motion papers before this court, this court lacks jurisdiction over the defendant as a result of the claimant’s failure to serve the defendant.

The defendant’s motion is granted and the claim is dismissed.


November 24, 2008
Utica, New York

HON. NORMAN I. SIEGEL
Judge of the Court of Claims