New York State Court of Claims

New York State Court of Claims

KINLAW, JR. v. STATE OF NEW YORK, #2009-032-147, Claim No. 116441, Motion No. M-76656


Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant’s attorney:
Arthur Kinlaw, Jr., Pro Se
Defendant’s attorney:
Hon. Andrew M. Cuomo, NYS Attorney GeneralBy: Paul F. Cagino, Assistant Attorney General, Of Counsel
Third-party defendant’s attorney:

Signature date:
September 21, 2009

Official citation:

Appellate results:

See also (multicaptioned case)


Defendant moves to dismiss the Claim on the ground that the Court lacks personal jurisdiction over Defendant and subject matter jurisdiction over the Claim, because the Claim was never served upon the Attorney General. For the reasons set forth below, this Court grants Defendant’s motion and dismisses Claim No. 116441.

The nature of the underlying claim, which was filed on February 17, 2009, is unclear. As best as the Court can tell, Claimant is alleging that certain employees of the New York State Division of Parole fraudulently misrepresented that certain records of Claimant did not exist, that said employees failed to protect Claimant, and that employees of the State of New York subjected Claimant to cruel and unusual punishment. Whether characterized as a claim for an intentional tort or an unintentional tort, Claimant is required to serve the claim upon the Attorney General by personal service or certified mail, return receipt requested (Court of Claims Act

§ 11[a]).

In support of its motion, Defendant submits the affidavit of Theresa Wowk, a Senior Clerk in the Claims Bureau of the Albany Office of the Attorney General of the State of New York. According to her affidavit, Ms. Wowk conducted a search of the records of the Albany Office of the Attorney General, Claims Bureau, and found no record that the subject claim was ever served on the Attorney General. The only document pertaining to this Claim which was allegedly received by the Office of the Attorney General was a copy of correspondence from the Court of Claims, dated March 4, 2009, acknowledging receipt by the Clerk of the Court on February 17, 2009, of a claim entitled Arthur Kinlaw, Jr., against the State of New York (see Wowk Affidavit annexed to Defendant’s motion as Exhibit 1). Claimant has not submitted any opposition to the motion.

Compliance with the service requirements contained in section 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 (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]).

Based upon the evidence before it, the Court concludes that Claimant failed to serve a copy of the Claim on the Office of the Attorney General. Accordingly, Defendant’s motion to dismiss (M–76656) is granted and Claim No. 116441 is dismissed.

September 21, 2009
Albany, New York

Judge of the Court of Claims

Papers Considered:

1. Defendant’s Notice of Motion to Dismiss and Affirmation of Paul F. Cagino, dated

May 8, 2009, with Exhibits;

2. No Opposition.

Filed Papers: Claim, filed February 17, 2009.