New York State Court of Claims

New York State Court of Claims

MEQUITA v. STATE OF NEW YORK, #2009-040-076, Claim No. 109711, Motion No. M-76914


Synopsis


State’s motion to dismiss Claim for failure to serve Claim on Defendant granted.

Case Information

UID:
2009-040-076
Claimant(s):
CHRISTINO MEQUITA, #85-A-7580
1 1.Caption amended to reflect the State of New York as the proper defendant.
Claimant short name:
MEQUITA
Footnote (claimant name) :

Defendant(s):
STATE OF NEW YORK
Footnote (defendant name) :
Caption amended to reflect the State of New York as the proper defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
109711
Motion number(s):
M-76914
Cross-motion number(s):

Judge:
CHRISTOPHER J. McCARTHY
Claimant’s attorney:
Christino Mequita, Pro Se
Defendant’s attorney:
ANDREW M. CUOMO
Attorney General of the State of New YorkBy: Paul F. Cagino, Esq., AAG
Third-party defendant’s attorney:

Signature date:
October 6, 2009
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

For the reasons set forth below, Defendant’s motion to dismiss the Claim based upon lack of jurisdiction is granted.

Court of Claims Act § 11(a)(i) provides that the Claim shall be filed with the Clerk of the Court and that a copy shall be served upon the Attorney General within the time period provided in the Court of Claims Act, either personally or by certified mail, return receipt requested. Pursuant to Court of Claims Act provisions applicable to personal injury actions, Claimant was required to file and serve his claim within 90 days from the date of accrual unless a written Notice of Intention to File a Claim was served upon the Attorney General within such time period. In that case, the Claim itself was required to be filed and served upon the Attorney General within two years after the accrual of the Claim (Court of Claims Act § 10[3]). The statutory requirements conditioning suit must be strictly construed (Dreger v New York State Thruway Auth., 81 NY2d 721, 724 [1992]; Rodriguez v State of New York, 307 AD2d 657 [3d Dept 2003]).

Defendant submitted the Affirmation of Assistant Attorney General Paul F. Cagino in support of its motion. Mr. Cagino states that his office was advised the above Claim had been filed with the Court of Claims when it received a letter from the Clerk of the Court dated August 17, 2004, acknowledging the Court’s receipt of the Claim on August 9, 2004. In further support of its motion, Defendant submitted an Affidavit of Theresa M. Wowk, a Senior Clerk in the Albany Office of the Attorney General (Ex. 1 attached to Affirmation in Support of Defendant’s Motion to Dismiss). Ms. Wowk attests that she is familiar with the record-keeping system of the Claims Bureau of the Attorney General’s Office regarding notices of intention to file claims and claims that are filed in the Court of Claims or received in the Attorney General’s Office. She further attests that, following a thorough search of the records of the Attorney General’s Office, she found the Attorney General “received a document entitled Notice of Intention to File a Claim, Christino Mequita v State of New York, August 2, 2004, by regular mail in the Albany office” (Wowk Affidavit, ¶ 5).

The Clerk of the Court sent a letter to both parties dated July 8, 2009, advising them of the return date of this motion. The Court notes that the letter was sent to Claimant at three different addresses. One was sent to Wyoming Correctional Facility in Attica, New York (hereinafter Wyoming), the second was sent to Orleans Correctional Facility in Albion, New York (hereinafter Orleans), and the third was sent to the U.S. Citizenship and Immigration Services in Latham, New York. The Court notes that the letter sent to Orleans was returned to the Court with a “Return to Sender, Not Deliverable as Addressed, Unable to Forward” notation. The letter sent to Wyoming was returned to the Court with the same notation. In addition, the letter sent to Wyoming bore a stamped message “Return to Sender, Not Here” and a handwritten notation stating “released to immigration.” The letter sent to U.S. Citizenship and Immigration Services was returned with a Post-It note stapled to the letter with the notation “Person Unknown at this Address.”

Defendant also served its motion papers upon Claimant at Wyoming and the U.S. Citizenship and Immigration Services. Defendant has submitted an Affidavit of Janet A. Barringer, a Senior Clerk in the Albany Office of the Attorney General, stating that the motion papers served upon Claimant at Wyoming were returned to the Defendant with the stamped message “Return to Sender, Not Here” and a handwritten notation stating “sent to immigration” (Ex. C attached to Barringer Affidavit). Ms. Barringer further avers that there is no record that the motion papers served on Claimant at the U.S. Citizenship and Immigration Services Center in Latham have been returned to Defendant (Barringer Affidavit, ¶ 6). Thus, it appears that Claimant may have received the motion, however, he has not submitted papers in opposition to the State’s motion.

The Court finds that Defendant has offered sufficient proof in support of its motion to establish that the Claim was not served upon the Attorney General. Claimant has not offered any proof in opposition to the motion and, accordingly, the Court is compelled to find that it lacks jurisdiction pursuant to Court of Claims Act § 11(a)(i). The motion to dismiss is granted and the Claim is dismissed.


October 6, 2009
Albany, New York

HON. CHRISTOPHER J. MCCARTHY
Judge of the Court of Claims


The following papers were read and considered by the Court on Defendant’s motion to dismiss:

Papers Numbered

Notice of Motion, Affirmation in Support
& Exhibits attached 1


Affidavit of Janet A. Barringer
& Exhibits attached 2



Filed papers: Claim