Motion to dismiss granted, no service on AG's office.
|Claimant short name:||PETEREC|
|Footnote (claimant name) :|
|Defendant(s):||STATE OF NEW YORK|
|Footnote (defendant name) :||The Court has, sua sponte, amended the caption to reflect the only proper party defendant.|
|Judge:||Terry Jane Ruderman|
|Claimant's attorney:||SHERRI PETEREC
|Defendant's attorney:||HON. ANDREW M. CUOMO
Attorney General for the State of New York
By: Jeane L. Strickland Smith, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||January 13, 2010|
|See also (multicaptioned case)|
The following papers numbered 1-4 were read and considered by the Court on defendant's motion to dismiss. Oral argument and a traverse hearing were scheduled for January 11, 2010:
Notice of Motion, Attorney's Supporting Affirmation and Exhibits.......................1
"Affirmation" in Opposition and Exhibits.................................................................2
Supplemental Affirmation in Support of Motion and Exhibits................................3
Claim No. 115745 arises out of a set of facts alleged to have occurred on May 28, 2008 and August 8, 2008, when claimant's vehicle was purportedly wrongfully stopped and she was detained by the New York State Police on Route 17 in Monroe, Orange County, New York. The claim was filed-stamped by the Clerk of the Court on August 25, 2008 (Defendant's Ex. A). The claim alleges, inter alia, false arrest, malicious prosecution, harassment, and negligent hiring.(2) Defendant moves to dismiss the claim on the ground that it was not served upon defendant as required by the Court of Claims Act.(3)
In support of the motion, defendant submits an affidavit sworn to May 14, 2009, of Tasha Hunter-Tabron, a clerk in the Claims Bureau of the Attorney General which stated that, upon a thorough search of the computer filing system in the Attorney General's Office and other searches, there is no record that this claim was ever served upon the Attorney General's Office (Defendant's Ex. B).
In opposition to defendant's motion to dismiss, claimant submits proof of a mailing sent certified mail, return receipt requested on October 31, 2008 and received by the Office of the Attorney General in New York City on November 3, 2008 (Claimant's Ex. C) and proof of a subsequent mailing sent certified mail, return receipt requested and received by the Attorney General's Office in Poughkeepsie on June 8, 2009 (Claimant's Ex. E).
In its supplemental affirmation, defendant submits copies of Claim Nos. 116034, 116035, 116036 (Defendant's Exs. C-E) which were filed-stamped by the Clerk of the Court on November 3, 2008, the same date of the receipt submitted by claimant which purportedly shows that the Attorney General's Office received service of Claim No. 115745 on November 3, 2008. Defendant argues that the return receipt submitted by claimant refers to Claim Nos. 116034, 116035 and 116036 and not Claim No. 115745, which is the subject of defendant's dismissal motion M-76791. Thus, defendant argues that claimant has not established that Claim No. 115745, which was filed with the Clerk of the Court on August 25, 2008, was ever served upon the Office of the Attorney General. Claimant argues that on November 3, 2008, the Office of the Attorney General received service of Claim Nos. 115744, 115745, 115746, 116034, 116035 and 116036.
Upon review of the papers submitted on this motion, the Court directed the parties to appear for oral argument and a traverse hearing regarding Claim No. 115745.(4) Claimant failed to appear.(5) She did not contact the Court or request an adjournment.
Court of Claims Act §11 mandates that any party seeking to commence an action against the State must file the claim with the Clerk of the Court and serve a copy of the claim upon the Attorney General. The Court of Appeals has held that these statutory requirements must be strictly construed and that both filing and service must occur within the applicable limitations period as a pre-condition of a suit against the State (see Dreger v New York State Thruway Auth., 81 NY2d 721, 724). The statute further provides that service by mail upon the Attorney General must be sent certified, return receipt requested and that "[s]ervice * * * upon the attorney general shall not be complete until the claim * * * is received in the office of the attorney general" (Court of Claims Act §11). Where claimant has failed to meet the statutory prerequisites, the claim must be dismissed for lack of subject matter jurisdiction (see Kolnacki v State of New York, 8 NY3d 277, 281 ["(t)he failure to satisfy any of the (statutory) conditions is a jurisdictional defect"]; Finnerty v New York State Thruway Auth., 75 NY2d 721, 723; Rodriguez v State of New York, 307 AD2d 657; Welch v State of New York, 286 AD2d 496, 497-498).
Claimant's mailing of Claim No. 115745 upon the Office of the Attorney General in Poughkeepsie on June 8, 2009 was untimely as it was served well beyond the 90 days of the asserted accrual dates of May 28, 2008 and August 8, 2008 and there was insufficient evidence to establish that claimant had otherwise complied with the service requirements of the Court of Claims Act.
Accordingly, defendant's motion is GRANTED and Claim No. 115745(6) is hereby dismissed.
January 13, 2010
White Plains, New York
Terry Jane Ruderman
Judge of the Court of Claims
2. Claim No. 115744, brought by claimant's husband, John L. Peterec, and Claim No. 115746, brought by claimant and her husband, all allege facts arising out of the same incident which is the basis of this claim.
3. Defendant also moved to dismiss Claim No. 115744 (M-76792) and Claim No. 115746 (M-76790).
4. The Court also scheduled defendant's motions to dismiss Claim No. 115744 (M-76792) and Claim No. 115746 (M-76790) and a traverse hearing regarding those claims for the same date and time as this motion. Despite two adjournments to accommodate claimants, on the third scheduled date, claimant, Sherri Peterec, failed to appear.
5. Her husband, who appeared regarding his claims, informed the Court that she was ill.
6. The Court's findings regarding the traverse hearing on the service of Claim Nos. 115744 and 115746 warranted dismissal of those claims due to the failure to establish timely service of a claim upon defendant.