New York State Court of Claims

New York State Court of Claims

CONSTANTINO v. THE STATE OF NEW YORK, #2009-015-140, Claim No. 115583, Motion No. M-75842


Synopsis


Claim dismissed for improper service.

Case Information

UID:
2009-015-140
Claimant(s):
KERRY CONSTANTINO
Claimant short name:
CONSTANTINO
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
115583
Motion number(s):
M-75842
Cross-motion number(s):

Judge:
FRANCIS T. COLLINS
Claimant’s attorney:
Kerry Constantino, Pro SeNo Appearance
Defendant’s attorney:
Honorable Andrew M. Cuomo, Attorney General
By: Paul F. Cagino, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
February 19, 2009
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Defendant moves for dismissal of the claim pursuant to CPLR 3211(a) (2) and (8) on the ground that the claim was not served upon the Attorney General as required by Court of Claims Act §§ 10 (3) and 11 (a). The claim filed on July 25, 2008 alleges that the claimant's driver's license was erroneously suspended for one year for "riding a electric scooter / bicycle the XB - 500 and the electric scooter takes no fuel of any kind. I do not have to register it or carry a driver's license to operate it." The affidavit of service filed with the claim indicates that the claimant mailed an unspecified document to the Department of Motor Vehicles in Staten Island, New York. The date of the mailing is not stated in the affidavit of service.

Defendant's motion to dismiss the claim is supported by an affidavit from Janet A. Barringer, Senior Clerk in the Albany Office of the Attorney General, who avers that that she has searched the electronic database maintained by the Attorney General's office and found no record that the instant claim was served upon the Attorney General.

Court of Claims Act § 11(a) (i) provides, in relevant part, that a copy of the claim "shall be served upon the attorney general . . . either personally or by certified mail, return receipt requested. . . " The Court of Appeals has noted in interpreting this provision that “statutory requirements conditioning suit must be strictly construed” (Dreger v New York State Thruway Auth., 81 NY2d 721, 724 [1992]). The failure to comply with this requirement, if not waived pursuant to Court of Claims Act §11 ( c), is a jurisdictional defect requiring dismissal of the claim (Rodriguez v State of New York, 307 AD2d 657 [2003]). Defendant has established that no claim was served upon the Attorney General and the defense was not waived. No opposition to the motion having been submitted, defendant's motion is granted and the claim is dismissed.


February 19, 2009
Saratoga Springs, New York

HON. FRANCIS T. COLLINS
Judge of the Court of Claims


The Court considered the following papers:
  1. Notice of motion dated November 10, 2008;
  2. Affirmation of Paul F. Cagino dated November 10, 2008;
  3. Affidavit of Janet A. Barringer sworn to November 4, 2008 with exhibits.