New York State Court of Claims

New York State Court of Claims

TERRENATE v. DMV NY, #2009-038-507, Claim No. 115436-A, Motion No. M-75751


Synopsis


Claim dismissed upon Court’s own motion. No proof of service of claim upon Attorney General

Case Information

UID:
2009-038-507
Claimant(s):
TEODORO C. TERRENATE
Claimant short name:
TERRENATE
Footnote (claimant name) :

Defendant(s):
DMV NY
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
115436-A
Motion number(s):
M-75751
Cross-motion number(s):

Judge:
W. BROOKS DeBOW
Claimant’s attorney:
TEODORO C. TERRENATE, Pro se
Defendant’s attorney:
ANDREW M. CUOMO, Attorney General of the State of New York
By: Paul F. Cagino, Assistant Attorney General
Third-party defendant’s attorney:

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

Official citation:

Appellate results:

See also (multicaptioned case)

.
Decision

This claim was filed on June 25, 2008. Defendant did not file an answer to the claim, and upon review of the claim and its appended documents, the Court determined that there was not an affidavit of service of the claim upon the Attorney General. The Court issued an Order to Show Cause directing claimant to demonstrate why the claim should not be dismissed for lack of jurisdiction (Terrenate v DMV NY, Claim No. 115436-A, Motion No. M-75751, Oct. 24, 2008). Claimant has responded with correspondence that does not demonstrate that the claim has been served upon the Attorney General. Defendant has filed a reply to the Order to Show Cause that demonstrates that the claim was not served upon the Attorney General. As pertinent here, Court of Claims Act § 11 (a) and Court of Claims Act § 10 together require that claimant serve a copy of the claim upon the Attorney General within 90 days of the date of accrual of the claim. The filing and service requirements of the Court of Claims Act are jurisdictional and must be strictly construed (see Finnerty v New York State Thruway Auth., 75 NY2d 721, 722-723 [1989]). The failure to comply with those requirements is a defect that deprives the Court of jurisdiction and requires dismissal of the claim (see id.; Martinez v State of New York, 282 AD2d 580 [2d Dept 2001], lv denied 96 NY2d 720 [2001]; Flynn v New York State Police and BCI, UID # 2007-038-550, Claim No. 112188, Motion No. M-71870, DeBow, J. [May 17, 2007]; Davis v State of New York, UID # 2006-042-503, Claim No. 107278, Motion No. M-72510, Siegel, J., [Jan. 9, 2007]; Farnsworth v State of New York, UID # 2006-031-091, Claim No. 110822, Motion No. M-71631, Minarik, J. [Dec. 29, 2006]).

Claimant did not serve the claim on the Attorney General, and therefore the Court lacks jurisdiction over the claim. Accordingly, it is

ORDERED, that Claim No. 115436-A is DISMISSED.

January 12, 2009
Albany, New York

HON. W. BROOKS DEBOW
Judge of the Court of Claims


Papers considered:


(1) Claim No. 115436-A, filed June 25, 2008, incorporating Correspondence of Teodoro C.

Terrenate, with attachments;

(2) Order to Show Cause, dated Oct. 24, 2008;

(3) Correspondence of Teodoro C. Terrenate, dated Nov. 9, 2008;

(4) Affirmation of Paul F. Cagino, AAG, in Reply to Order to Show Cause, dated Nov. 10, 2008;

(5) Affidavit of Janet A. Barringer, sworn to Oct. 30, 2008, with Exhibits A-B;

(6) Courtesy copy of Correspondence of Teodoro C. Terrenate, dated Nov. 19, 2008.