New York State Court of Claims

New York State Court of Claims

METCALF v. ADMINISTRATION FOR CHILDREN SERVICE (A.C.S.), et al., #2009-016-018, Claim No. 114893, Motion Nos. M-76132, M-76133, CM-76243


Synopsis


Claims were dismissed for lack of service.

Case Information

UID:
2009-016-018
Claimant(s):
JOHN GLENN BARRY METCALF, SR.
Claimant short name:
METCALF
Footnote (claimant name) :

Defendant(s):
ADMINISTRATION FOR CHILDREN SERVICE (A.C.S.), et al.
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
114893
Motion number(s):
M-76132, M-76133
Cross-motion number(s):
CM-76243
Judge:
Alan C. Marin
Claimant’s attorney:
John Glenn Barry Metcalf, Sr., Pro Se
Defendant’s attorney:
Andrew M. Cuomo, Attorney GeneralBy: Gwendolyn Hatcher, Esq., AAG
Third-party defendant’s attorney:

Signature date:
March 27, 2009
City:
New York
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

In motion nos. M-76132 and M-76133, claimant John Glenn Barry Metcalf, Sr. moves “for a joint combined monetary settlement” with regard to claim nos. 114893 and 114894. Defendant cross-moves to dismiss on the ground that it was not served with the claims. In claim no. 114893, Mr. Metcalf appears to complain of a decision regarding the custody of his children dated December 26, 2006. In claim no. 114894, he appears to allege that he was wrongly arrested by the Police Department of the City of New York on August 4, 2007 in connection with an “illegal lockout” from his apartment. As an initial matter, it should be noted that the Court of Claims is not the appropriate forum for claimant to contest custody matters, nor does the Court of Claims have jurisdiction over the City of New York. But in any event, claimant, who failed to oppose defendant’s cross-motion to dismiss, does not dispute that he failed to serve his claims upon the Office of the Attorney General; under any possible theory of recovery, §10 of the Court of Claims Act would require service within 90 days of accrual.

“It is well established that compliance with sections 10 and 11 of the Court of Claims Act pertaining to the timeliness of filing and service requirements respecting claims and notices of intention to file claims constitutes a jurisdictional prerequisite to the institution and maintenance of a claim against the State, and accordingly, must be strictly construed . . .” Byrne v State of New York, 104 AD2d 782, 783, 480 NYS2d 225, 227 (2d Dept 1984), lv denied, 64 NY2d 607, 488 NYS2d 1023 (1985) (citations omitted). See also Mallory v State of New York, 196 AD2d 925, 601 NYS2d 972 (3d Dept 1993). In view of the foregoing, this court lacks jurisdiction over the claims of John Glenn Barry Metcalf, Sr.

Accordingly, having reviewed the submissions[1], IT IS ORDERED that cross-motion no. CM-76243 be granted and that claim nos. 114893 and 114894 be dismissed. IT IS FURTHER ORDERED that motion nos. M-76132 and M-76133 be denied.



March 27, 2009
New York, New York

HON. ALAN C. MARIN
Judge of the Court of Claims




  1. [1]The following were reviewed: claimant’s notice of motion no. M-76132 with affidavit in support and undesignated exhibits; claimant’s notice of motion no. M-76133 with affidavit in support and undesignated exhibits; defendant’s notice of cross-motion no. CM-76243 with annexed affirmation and exhibits A and B; and claimant’s additional submission filed on March 25, 2009.