New York State Court of Claims

New York State Court of Claims

WILLIAMS v. STATE OF NEW YORK, #2009-018-011, Claim No. 112822, Motion No. M-75640


Synopsis



Case Information

UID:
2009-018-011
Claimant(s):
A. C. WILLIAMS
Claimant short name:
WILLIAMS
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
112822
Motion number(s):
M-75640
Cross-motion number(s):

Judge:
DIANE L. FITZPATRICK
Claimant’s attorney:
A. C. WILLIAMSPro Se
Defendant’s attorney:
ANDREW M. CUOMO
Attorney General of the State of New York
By: Joel L. Marmelstein, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
February 25, 2009
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Defendant brings this motion to dismiss the claim for lack of personal and subject matter

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 October 23, 2006, acknowledging receipt of a Claim on October 2, 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.

The claim, which Claimant alleges accrued on July 5, 2006 at Gouverneur Correctional Facility seeks damages for harassment and assault of Claimant by a correction officer. Claimant also alleges the tape of the incident was lost in a cover-up. Claimant filed a grievance which was denied and affirmed by the Director of the Albany Office for Grievances. An incomplete form affidavit of service was attached to the claim and filed with the Clerk of the Court.

Court of Claims Act § 10(3-b) requires that a claimant seeking damages for the intentional tort 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 receipt requested.

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 adequate 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.



February 25, 2009
Syracuse, New York

HON. DIANE L. FITZPATRICK
Judge of the Court of Claims


The Court has considered the following documents in deciding this motion:

1. Notice of Motion.

2. Affirmation of Joel L. Marmelstein, Esquire, Assistant Attorney General, in support, with exhibits annexed thereto.

3. No response was received from Claimant.