State's cross-motion to dismiss pursuant to Court of Claims Act § 11(a) based upon Claimant's failure to serve Claim granted. Claimant's motion to compel discovery denied as moot.
|Claimant(s):||JOHNATHAN JOHNSON 89 A 1042|
|Claimant short name:||JOHNSON|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||CHRISTOPHER J. McCARTHY|
|Claimant's attorney:||Johnathan Johnson, Pro Se|
|Defendant's attorney:||ANDREW M. CUOMO
Attorney General of the State of New York
By: Michael C. Rizzo, Esq., AAG
|Third-party defendant's attorney:|
|Signature date:||November 24, 2009|
|See also (multicaptioned case)|
For the reasons set forth below, Claimant's motion to compel discovery responses pursuant to CPLR 3124 and § 3126 is denied as moot and the State's cross-motion to dismiss pursuant to Court of Claims Act § 11(a) is granted.
The Court will address the State's cross-motion to dismiss first. 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. A claim for personal injuries caused by the negligence or unintentional tort of a State employee must be filed and served upon the Attorney General 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). The statutory requirements conditioning suit must be strictly construed (Dreger v New York State Thruway Auth., 81 NY2d 721, 724 ; Rodriguez v State of New York, 307 AD2d 657 [3d Dept 2003]).
Defendant submitted the Affirmation of Assistant Attorney General Michael C. Rizzo in support of its motion. Mr. Rizzo states that his office was advised the above Claim had been filed with the Court of Claims when it received a letter from the Court dated January 6, 2009, acknowledging the Court's receipt of the Claim on December 17, 2008. In further support of its motion, Defendant submitted an Affidavit of Janet Barringer, a Senior Clerk in the Albany Office of the Attorney General. Ms. Barringer 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 "no record that the Claim in this matter was ever served on the Attorney General"( Barringer Affidavit, ¶ 5).
The Clerk of the Court sent a letter to both parties dated September 16, 2009, advising them of the return date of this motion and cross-motion. The Court notes that the letter was sent to Claimant at Upstate Correctional Facility in Malone, New York (hereinafter Upstate) and Defendant also served its cross-motion papers upon Claimant at Upstate. Claimant has not submitted papers in opposition to the State's motion. However, in his affidavit submitted in support of his motion to compel discovery, Claimant asserts that attached to an affidavit submitted in support of another motion related to another Claim (which is assigned to another Court of Claims Judge) is an exhibit that indicates that this Claim was served upon Defendant (see Johnson Affidavit in Support, ¶ 6). Claimant has submitted neither that affidavit nor the exhibit which purport to establish that the instant Claim was served upon Defendant.
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 cross-motion to dismiss is granted and the Claim is dismissed. Claimant's motion to compel discovery is denied as moot.
November 24, 2009
Albany, New York
CHRISTOPHER J. McCARTHY
Judge of the Court of Claims
The following papers were read and considered by the Court on Claimant's motion to compel and the State's cross motion to dismiss:
Notice of Motion, Affidavit in Support
& Exhibits attached 1
Notice of Cross-Motion, Affirmation in Opposition
& Exhibits attached 2
Filed Papers: Claim