Defendant's motion to dismiss the claim based upon a failure of the claimant to serve the Attorney General was granted.
|Claimant short name:||GODLEY|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Motion number(s):||M-77444, M-77531|
|Judge:||NICHOLAS V. MIDEY JR.|
|Claimant's attorney:||GREGORY GODLEY, Pro Se|
|Defendant's attorney:||HON. ANDREW M. CUOMO
BY: Edward F. McArdle, Esq.,
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||March 2, 2010|
|See also (multicaptioned case)|
By Order to Show Cause issued by the Court on November 9, 2009 (M-77444), the parties were directed to address the issue of whether this claim had been properly served, and to make appropriate submissions on this issue to the Court on or before December 16, 2009. Apparently in response, defendant's attorney has brought a motion (M-77531) seeking to dismiss this claim based upon the alleged failure of the claimant to serve his claim upon the Attorney General. Since both of these matters address the identical issue (i.e., whether claimant has served his claim upon the Attorney General), they will be addressed together herein.
The Court has therefore considered the following papers in connection with these motions:
Order to Show Cause dated November 9, 2009 (M-77444) 1
Notice of Motion to Dismiss Claim, Affirmation of Edward F. McArdle, Esq., Assistant Attorney General, Affidavit of Janet Barringer, with Exhibits (M-77531) 2, 3, 4
Correspondence, with Attachments, from claimant in response to M-77444, dated December 4, 2009 5
Affidavit of Service of Claim (copy) sworn to on December 11, 2009, with Attachments
As indicated above, defendant has submitted the Affidavit of Janet Barringer, a Senior Clerk in the Albany office of the Attorney General who is familiar with the record keeping system regarding notices of intention to file claims and claims that are received in that office. In her Affidavit, Ms. Barringer states that as of November 19, 2009, based upon her examination of the files in the office of the Attorney General, she found no record that the claim in this matter was ever served on the Attorney General.
In response, claimant has submitted a copy of an Affidavit of Service of the Claim, contending that this claim was mailed to the Attorney General on December 7, 2009, by certified mail, return receipt requested. However, even though Hon. Andrew Cuomo, as Attorney General, was listed as an Addressee, the Affidavit of Service (and return receipt card) indicates that the address to which this claim was mailed was that of the Court of Claims, and not the Office of the Attorney General. In this regard, the Court has examined the receipt card submitted by claimant and notes that the certified mailing was received by one Sherri L. Deome, and this Court is personally aware that Ms. Deome is an employee of the Court of Claims, and not of the Attorney General.
Accordingly, without even addressing the issue of timeliness of service of the claim, this Court must find that despite the recent attempt by claimant to serve his claim upon the Attorney General, he has failed to do so. Based upon the Affidavit of Ms. Barringer, as well as upon the Court's own examination of the papers submitted by claimant, the Court finds and concludes that claimant has failed to serve this claim upon the Attorney General.
The service requirements of § 11 of the Court of Claims Act are jurisdictional in nature, and a party's failure to comply with those requirements deprives the Court of jurisdiction to hear the claim (Dreger v New York State Thruway Auth., 81 NY2d 721; Bogel v State of New York, 175 AD2d 493).
Accordingly, based upon the failure of the claimant to serve this claim upon the Attorney General, this Court does not have jurisdiction of the claim, and it must be dismissed.
Therefore, it is
ORDERED, that defendant's motion (M-77531) is hereby GRANTED; the Court's Order to Show Cause (M-77444) has been rendered moot; and it is further
ORDERED, that Claim No. 114215 is hereby DISMISSED.
March 2, 2010
Syracuse, New York
NICHOLAS V. MIDEY JR.
Judge of the Court of Claims