New York State Court of Claims

New York State Court of Claims

SMITH v. THE STATE OF NEW YORK, #2009-032-127, Claim No. 115592, Motion No. M-76087


Synopsis



Case Information

UID:
2009-032-127
Claimant(s):
PAUL F. SMITH
Claimant short name:
SMITH
Footnote (claimant name) :

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

Third-party claimant(s):
Third-party defendant(s):

Claim number(s):
115592
Motion number(s):
M-76087
Cross-motion number(s):

Judge:
JUDITH A. HARD
Claimant’s attorney:
Paul F. Smith, Pro Se
Defendant’s attorney:
Hon. Andrew M. Cuomo, NYS Attorney GeneralBy: Roberto Barbosa, Assistant Attorney General, Of Counsel
Third-party defendant’s attorney:

Signature date:
June 12, 2009
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Defendant brings a motion to dismiss Claim No. 115592 on the ground that the Court lacks personal jurisdiction over defendant and subject matter jurisdiction over the claim. For the reasons set forth herein, the Court grants defendant’s motion and dismisses Claim No. 115592.


The underlying claim alleges that on April 28, 2008, employees of defendant assaulted him while he was being returned to his cell at Southport Correctional Facility.

In support of its motion to dismiss, defendant alleges that it received, on June 25, 2008, claimant’s notice of intention to file a claim by regular mail and annexes a copy of the envelope in which the notice of intention was enclosed, to confirm the same. Defendant further alleges that it was never served with the claim in this matter. In support of its position, defendant submits the Affidavit of Lenore Perrot, a Senior Clerk in the Albany Office of the Attorney General of the State of New York, which indicates that while the Office of the Attorney General received a copy of claimant’s notice of intention by regular mail and correspondence from the court acknowledging that a claim was filed on August 7, 2008, the Office of the Attorney General was never served with the actual claim.

Court of Claims Act § 10 (3-b) states, in pertinent part, that a claim to recover damages for personal injuries caused by the intentional tort of an officer or employee of the state while acting as such officer or employee shall be filed and served upon the attorney general within ninety days after the accrual of such claim, unless the claimant shall within such time serve upon the attorney general a written notice of intention to file a claim therefor, in which event the claim shall be filed and served upon the attorney general within one year after the accrual of such claim.

Court of Claims Act § 11 (a)(i) states, in pertinent part, that the claim shall be filed with the clerk of the court, and a copy shall be served upon the attorney general within the times provided for filing with the clerk of the court either personally or by certified mail, return receipt requested. It further states that any notice of intention shall be similarly served upon the attorney general within the times provided for service upon the attorney general (Court of Claims Act § 11 [a][i]).

In the present case, the claim accrued on April 28, 2008. Accordingly, claimant was required to serve his claim, either personally or by certified mail, return receipt requested, on or before July 28, 2008. In the alternative, claimant could have served a notice of intention to file a claim, either personally or by certified mail, return receipt requested, by July 28, 2008, in which case, claimant would have had until April 28, 2009, to serve his claim. By not properly filing and serving a claim or properly serving notice of intention to file a claim, on or before July 28, 2008, claimant has failed to comply with the requirements of the Court of Claims Act.

Compliance with the filing and service requirements contained in sections 10 and 11 of the Court of Claims Act is a jurisdictional prerequisite to bringing and maintaining an action in the Court of Claims, and failure to comply constitutes a fatal jurisdictional defect requiring dismissal (Buckles v State of New York, 221 NY 418 [1917]; Thomas v State of New York, 144 AD2d 882 [3d Dept 1988]; Finnerty v New York State Thruway Auth., 75 NY2d 721 [1989]; Dreger v New York State Thruway Auth., 177 AD2d 762 [3d Dept 1991], affd 81 NY2d 721 [1992]; Suarez v State of New York, 193 AD2d 1037 [3d Dept 1993]).

In light of the foregoing, defendant’s motion to dismiss (M-76087) is granted and Claim No. 115592 is dismissed.



June 12, 2009
Albany, New York

HON. JUDITH A. HARD
Judge of the Court of Claims


Papers Considered:


1. Notice of Motion and Affirmation of Roberto Barbosa, AAG, dated January 5, 2009, with Exhibits 1-3 and A-C;

2. Letter of claimant, received January 26, 2009, acknowledging receipt of the Court’s correspondence setting forth the return date of this motion.