New York State Court of Claims

New York State Court of Claims
FAIRCHILD v. THE STATE OF NEW YORK, # 2010-009-008, Claim No. 114971, Motion No. M-77468

Synopsis

The claim was dismissed based upon a failure of the claimant to serve the claim upon the Attorney General.

Case information

UID: 2010-009-008
Claimant(s): W.F. FAIRCHILD
Claimant short name: FAIRCHILD
Footnote (claimant name) :
Defendant(s): THE STATE OF NEW YORK
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 114971
Motion number(s): M-77468
Cross-motion number(s):
Judge: NICHOLAS V. MIDEY JR.
Claimant's attorney: No Appearance.
Defendant's attorney: HON. ANDREW M. CUOMO
Attorney General
BY: Heather R. Rubinstein, Esq.,
Assistant Attorney General
Of Counsel.
Third-party defendant's attorney:
Signature date: March 16, 2010
City: Syracuse
Comments:
Official citation:
Appellate results:
See also (multicaptioned case)

Decision

By an Order to Show Cause issued by the Court on November 18, 2009, 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. After service of this Order to Show Cause, the Court received correspondence from Geico Insurance Company, presumably the Subrogee of claimant Fairchild, requesting information regarding this claim and motion. The requested information was provided, and this matter was adjourned to the Court's February 17, 2010 Motion Calendar in order to provide Geico and/or the claimant the opportunity to investigate and/or respond to this motion. No response from either Geico or claimant has been submitted, nor has there been any further contact whatsoever from either party. As a result, the Court has considered the following papers in connection with this motion:

Order to Show Cause, issued November 18, 2009 1

Affirmation of Heather R. Rubinstein, Esq., Assistant Attorney General, Affidavit of Janet Barringer, with Exhibits 2,3

As indicated, 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 based upon her examination of the files in the Office of the Attorney General, she finds no record that the claim in this matter was ever served on 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).

In this particular matter, defendant has established to the satisfaction of the Court that claimant failed to serve this Claim upon the Attorney General. Accordingly, the Court does not have jurisdiction of the claim, and it must be dismissed.

Therefore, it is

ORDERED, that Claim No. 114971 is hereby DISMISSED.

March 16, 2010

Syracuse, New York

NICHOLAS V. MIDEY JR.

Judge of the Court of Claims