New York State Court of Claims

New York State Court of Claims

VAN NESS v. NEW YORK STATE POLICE FORENSIC CRIME LABORATORY, #2009-032-138, Claim No. 113972, Motion Nos. M-76478, CM-76662


Synopsis



Case Information

UID:
2009-032-138
Claimant(s):
ROBERT C. VAN NESS
Claimant short name:
VAN NESS
Footnote (claimant name) :

Defendant(s):
NEW YORK STATE POLICE FORENSIC CRIME LABORATORY
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
113972
Motion number(s):
M-76478
Cross-motion number(s):
CM-76662
Judge:
JUDITH A. HARD
Claimant’s attorney:
Robert C. Van Ness, Pro Se
Defendant’s attorney:
Hon. Andrew M. Cuomo, NYS Attorney GeneralBy: Carol A. Cocchiola, Assistant Attorney General, Of Counsel
Third-party defendant’s attorney:

Signature date:
August 31, 2009
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant brings a motion seeking summary judgment in his favor. Defendant opposes Claimant’s motion and cross moves to dismiss the claim on the ground that the Court lacks personal jurisdiction over Defendant and subject matter jurisdiction over the claim. As it may be potentially dispositive, the Court will first address Defendant’s motion to dismiss, to which Claimant has submitted no opposition.


Defendant argues the claim should be dismissed because it was never served upon the Attorney General, as required by Court of Claims Act §11. In support of its motion, Defendant submits the affidavit of Lenore Perrott, a Senior Clerk in the Albany Office of the Attorney General of the State of New York. According to her affidavit, Ms. Perrott conducted a review of the paper and electronic files in the office of the Attorney General of the State of New York, Claims Bureau, and found that the only document received by the Office of the Attorney General, with respect to the subject claim, was a copy of correspondence from the Court of Claims, dated August 3, 2007, acknowledging receipt of the claim on July 18, 2007. According to Ms. Perrott, there is no record of the claim ever being served on the attorney general.

The nature of the underlying claim, which was filed on July 18, 2007, is unclear. As best as the Court can tell, Claimant is alleging that the conduct of certain employees of the New York State Police Forensic Crime Laboratory contributed to his arrest and/or conviction. Whether characterized as a claim for an intentional tort or an unintentional tort, the time period for serving the claim upon the Attorney General is 90 days from the date of accrual, unless the Claimant, within said time, serves the attorney general with a written notice of intention to file a claim, in which event the claim would need to be filed and served upon the Attorney General within one year after accrual of the claim for an intentional tort or two years after accrual for an unintentional tort (Court of Claims Act §§10 [3], 10 [3-b]). Claims and notices of intention to file a claim must be served upon the Attorney General by personal service or certified mail, return receipt requested (Court of Claims Act §11[a]).

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 (Buckles v State of New York, 221 NY 418 [1917]), and failure to comply constitutes a fatal jurisdictional defect requiring dismissal (Thomas v State of New York, 144 AD2d 882 [3d Dept 1988]; Finnerty v New York State Thruway Auth., 75 NY2d 721 [1989]; Matter of 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]).

According to the claim filed by Claimant, the claim accrued on June 30, 2007. Accordingly, the claim would need to have been served upon the Attorney General on or before September 28, 2007, unless a notice of intention to file a claim was served upon the Attorney General within said time frame. If a notice of intention to file a claim was served by September 28, 2007, Claimant would have had until June 30, 2009 at the latest, to serve the claim upon the Attorney General.

Although Claimant alleges in his claim that a notice of intention was served upon defendant, the proof submitted reflects otherwise. To begin, it should be noted that the only reference to a notice of intention having been served upon Defendant is in the claim. Claimant indicates in that claim that he served a notice of intention on July 16, 2007, which is, notably, three days after the claim was verified. Moreover, the documents submitted by Defendant in support of its motion reflect that the only document ever served by Claimant upon Defendant by either personal service or certified mail, return receipt requested (the manner in which a claim and a notice of intention are to be served), was a notice of intention, served on May 23, 2007 (one month prior to the alleged accrual of the subject claim) with regard to claim number 113763.

In light of the foregoing and the fact that the subject claim was not timely served upon Defendant, Defendant’s cross motion to dismiss (CM-76662) is granted. Claim number 113972 is dismissed and Claimant’s motion for summary judgment (M-76478) is denied as moot.



August 31, 2009
Albany, New York

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


Papers Considered:


1. Claimant’s Motion for Summary Judgment and Affidavit, sworn to February 17, 2009, with Exhibits;

2. Defendant’s Notice of Cross Motion and Affirmation of Carol A. Cocchiola, AAG, dated May 8, 2009, with Exhibits.

Filed Papers: Claim, filed July 18, 2007.