Defendant's motion to dismiss on jurisdictional grounds (improper service and untimely service) granted. Claimant's motion for summary judgment and defendant's cross motion to dismiss denied as moot.
|Claimant(s):||AIMEE O'NEIL and MORGAN O'NEIL|
|Claimant short name:||O'NEIL|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK and employee CATHERINE BEBEE|
|Footnote (defendant name) :|
|Motion number(s):||M-77089, M-77365|
|Judge:||W. BROOKS DeBOW|
|Claimant's attorney:||AIMEE O'NEIL, Pro se|
|Defendant's attorney:||ANDREW M. CUOMO, Attorney General of the State of
By: Glenn C. King, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||December 18, 2009|
|See also (multicaptioned case)|
Claimants Aimee O'Neil and Morgan O'Neil seek to prosecute a claim against the State of New York in which they seek compensation for injuries allegedly sustained in or about December 2000. The claim is based on the alleged actions of alleged "New York State licensed employee" Catherine Bebee who, it is alleged, traveled to Florida and removed Morgan O'Neil from Aimee O'Neil's custody. In lieu of answering the claim, defendant moves to dismiss it on jurisdictional grounds (M-77089), a motion against which claimants have not submitted opposition. In a separate motion (M-77365), claimants move for summary judgment on the claim, which motion is opposed by defendant. Defendant cross-moves to dismiss the claim (CM-77520) for lack of subject matter jurisdiction.
In support of its motion to dismiss (M-77089), defendant contends that the claim was not served in accordance with the requirements of the Court of Claims Act, and it is therefore jurisdictionally defective. Court of Claims Act § 11 (a) requires, inter alia, that a copy of the claim "shall be served upon the attorney general. . . either personally or by certified mail, return receipt requested. . ." Failure to serve the claim in accordance with section 11 is a jurisdictional defect that requires dismissal of the claim (see Hodge v State of New York, 213 AD2d 766 [3d Dept 1995]; Bogel v State of New York, 175 AD2d 493, 494 [3d Dept 1991]; Smith v State of New York, UID # 2006-009-064, Claim No. 111248, Motion No. M-72094, Midey, J. [Nov. 21, 2006]; Adams v State of New York, UID # 2004-031-169, Claim No. 108345, Motion No. M-69290, Minarik, J. [Dec. 8, 2004]). A copy of the envelope in which the claim was mailed to the Attorney General is appended to the motion in lieu of an answer (King Affirmation, Exhibit A). The envelope bears what appears to be the mark of first class postage and lacks any indicia that it was mailed by certified mail, return receipt requested, as required by Court of Claims Act § 11 (a). As noted above, claimants have not submitted any opposition to the motion that would permit the Court to conclude that it was not served by ordinary first class mail. Accordingly, the Court lacks jurisdiction over defendant, and the claim must be dismissed on this ground.
Inasmuch as the jurisdictional defect discussed above requires dismissal of the claim, claimants' motion for summary judgment and defendant's cross motion will be denied as moot.
Accordingly, it is
ORDERED, that defendant's Motion No. M-77089 is GRANTED, and claim No. 117133 is DISMISSED, and it is further
ORDERED, that claimants' Motion No. M-77365 is DENIED in all respects; and it is further
ORDERED that defendant's Cross Motion No. CM-77520 is DENIED.
December 18, 2009
Albany, New York
W. BROOKS DeBOW
Judge of the Court of Claims
(1) Claim No. 117133, filed July 16, 2009;
(2) Notice of Motion to Dismiss in Lieu of an Answer, dated August 17, 2009;
(3) Affirmation in Support of Defendant's Motion to Dismiss in Lieu of an Answer of
Glenn C. King, AAG, dated August 17, 2009, with exhibits A-F;
(4) Motion for Summary Judgment, filed October 9, 2009;
(5) Affirmation in Opposition to Claimant's Motion for Summary Judgment and Claimant's
Motion to Late File a Claim of Glenn C. King, AAG, dated August 17, 2009,
with exhibits A-B;
(6) Notice of Cross Motion to Dismiss, dated November 24, 2009;
(7) Affirmation in Opposition to Claimant's Motion for Summary Judgment and in Support of
Defendant's Cross Motion to Dismiss of Glenn C. King, AAG, dated November 24, 2009,with exhibits 1-3.