New York State Court of Claims

New York State Court of Claims

GRACI v. THE STATE OF NEW YORK, #2009-044-512, Claim No. 115714, Motion No. M-75890


Synopsis


Claim dismissed for failure to serve copy on Attorney General’s Office.

Case Information

UID:
2009-044-512
Claimant(s):
ANGELO GRACI
Claimant short name:
GRACI
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK1 1. The Court has sua sponte amended the caption to reflect the State of New York as the sole proper defendant.
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
115714
Motion number(s):
M-75890
Cross-motion number(s):

Judge:
CATHERINE C. SCHAEWE
Claimant’s attorney:
ANGELO GRACI, Pro se
Defendant’s attorney:
HON. ANDREW M. CUOMO, ATTORNEY GENERALBY: Carol A. Cocchiola, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
February 23, 2009
City:
Binghamton
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

On or about August 20, 2008, claimant filed a claim in this action with the Clerk of the Court. The claim seeks damages for alleged property damage, apparently due to a police raid. Court records indicate that defendant has not filed an answer. The Court, sua sponte, issued an order to show cause dated November 18, 2008, directing claimant to submit a written statement relating to the service of the claim on the Office of the Attorney General, including copies of any documentary evidence establishing such service. The Court also invited the Attorney General’s Office to submit a statement from someone with personal knowledge of the records of the Department of Law concerning the service or lack thereof.

Claimant has failed to respond. Defendant has submitted an affidavit of Lenore Perrott, a Senior Clerk in the Albany Office of the Attorney General. Perrott states that she contacted the Court of Claims Office and ascertained the date claimant alleged the claim accrued. Perrott searched the Attorney General’s electronic database by claimant’s name and incident date and found only a letter dated September 2, 2008 from the Clerk of the Court which indicates that the claim was filed. Perrott avers that the matter was assigned reference number

OAG #08-082935-O, but there was no record that any claim had been served on the Attorney General’s Office.

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. The service requirements of Court of Claims Act § 11 are jurisdictional in nature and claimant’s failure to comply is fatal (see Dreger v New York State Thruway Auth., 81 NY2d 721, 724 [1992]; Finnerty v New York State Thruway Auth., 75 NY2d 721, 723 [1989]).

Claim No. 115714 is hereby dismissed in its entirety.


February 23, 2009
Binghamton, New York

HON. CATHERINE C. SCHAEWE
Judge of the Court of Claims


The following papers were read on the Court’s motion for clarification regarding service of the claim:

1) Order to Show Cause filed on November 20, 2008.

2) Affirmation of Carol A. Cocchiola, Assistant Attorney General, dated January 22, 2009, and attached Exhibits 1, A and B.


Filed papers: Claim filed on August 20, 2008.