Defendant brings this motion to dismiss the claim for lack of personal and
jurisdiction. Defendant asserts that it was never served with a copy of the
claim. In support of its position, Defendant submits the affirmation of
Assistant Attorney General Joel L. Marmelstein and the affidavit of Janet A.
Barringer, Senior Clerk in the Albany Office of the Attorney General. Ms.
Barringer’s duties require that she be familiar with the record keeping
system in the Claims Bureau of the Office of the Attorney General for notices of
intention and claims. The only documentation of this claim received by the
Attorney General’s Office, according to Ms. Barringer, was a letter from
the Court of Claims dated November 9, 2006, acknowledging receipt of a Claim on
October 18, 2006, entitled “WILLIAMS A.C. 04 A 5364 v. STATE OF NEW
YORK” by the Clerk of the Court (see Defendant’s Exhibit B).
Ms. Barringer states that based upon her review of the files she could find no
record of the claim ever being served upon the Attorney General.
In the claim, Claimant alleges that his appeal from August 31, 2006, had not
been determined, and he further alleges it was ignored as of the date of the
claim, October 14, 2006. Although it is difficult to identify exactly for what
Claimant seeks damages, it appears that Claimant, an inmate at Gouverneur
Correctional Facility, was found guilty after a hearing on a misbehavior report
on August 22, 2006, for making false statements. Claimant apparently appealed
this finding which was affirmed by the Superintendent. Claimant then appealed
to the Commissioner. There was no affidavit of service filed with the Clerk of
the Court, as required by the Uniform Rules for the Court of Claims [22 NYCRR]
Court of Claims Act §§ 10(3) and (3-b) require that a claimant
seeking damages for the wrongdoing of an officer or employee of the State must
file and serve a copy of the claim upon the Attorney General within 90 days of
the date of accrual. Service upon the Attorney General according to Court of
Claims Act § 11(a) must be by personal service or by certified mail, return
The requirements in Court of Claims Act §§ 10 and 11 are
jurisdictional prerequisites to commencing an action in this Court (Byrne v
State of New York, 104 AD2d 782, 783, lv denied 64 NY2d 607).
The failure to serve the Attorney General results in a failure of subject
matter jurisdiction, which precludes this Court from hearing the claim
(Finnerty v New York State Thruway Authority, 75 NY2d 721, 722; Nish v
Town of Poestenkill, 179 AD2d 929, appeal dismissed 79 NY2d 1040).
Since Claimant has not come forward with any proof of service (see Wern v
D’Alessandro, 219 AD2d 646); and, in fact, has not responded to the
motion, Defendant’s motion must be GRANTED and the claim DISMISSED.