New York State Court of Claims

New York State Court of Claims

VAZQUEZ v. STATE OF NEW YORK, #2009-018-033, Claim No. 111893-A, Motion No. M-76713


Synopsis


Claim is dismissed. Claimant failed to properly serve the Defendant - either personally or by certified mail, return receipt requested.

Case Information

UID:
2009-018-033
Claimant(s):
LUIS A.VAZQUEZ
Claimant short name:
VAZQUEZ
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
111893-A
Motion number(s):
M-76713
Cross-motion number(s):

Judge:
DIANE L. FITZPATRICK
Claimant’s attorney:
LUIS A. VAZQUEZPro Se
Defendant’s attorney:
ANDREW M. CUOMO
Attorney General of the State of New York
By: BONNIE GAIL LEVY, ESQUIREAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
August 11, 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 Bonnie Gail Levy 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 recordkeeping system in the Claims Bureau of the Attorney General’s office for notices of intention and claims. The only documentation received by the Attorney General’s office of this claim, according to Ms. Barringer, was a letter from the Court of Claims dated February 15, 2006, acknowledging receipt of the claim of Luis A. Vazquez, 97 A 3359 v State of New York, by the Clerk of the Court of Claims on January 25, 2006 (see Defendant’s Exhibits A and B).

The claim was filed with the Clerk of the Court on January 25, 2006. No affidavit of service was filed with the Clerk of the Court, as required by the Uniform Rules for the Court of Claims [22 NYCRR] § 206.5(a).

Court of Claims Act §§ 10(3) and (3-b) requires that a claim seeking damages for an intentional tort or the negligence of an officer or employee of the State must be filed and served or a notice of intention served 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.

These 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 jurisdiction to hear this claim (see Dreger v New York State Thruway Authority, 81 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, and in fact has not responded to the motion, Defendant’s motion must be GRANTED and the claim DISMISSED.



August 11, 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 Assistant Attorney General Bonnie Gail Levy, Esquire, in support, with exhibits attached thereto.

3. No response to the motion was received from Claimant.