Defendant's motion to dismiss based upon non-service of the claim was granted.
|Claimant(s):||ANDREW G. BYRNE|
|Claimant short name:||BYRNE|
|Footnote (claimant name) :|
|Defendant(s):||COUNTY OF CAYUGA|
|Footnote (defendant name) :|
|Motion number(s):||M-78757, M-78892|
|Judge:||NICHOLAS V. MIDEY JR.|
|Claimant's attorney:||ANDREW G. BYRNE, Pro Se|
|Defendant's attorney:||HON. ANDREW M. CUOMO
BY: Bonnie G. Levy, Esq.,
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||October 26, 2010|
|See also (multicaptioned case)|
By Order to Show Cause issued by the Court on September 1, 2010 (M-78757), 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 October 20, 2010. Apparently in response, defendant's attorney has brought a motion (M-78892) 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 September 1, 2010 (M-78757) 1
Notice of Motion to Dismiss Claim, Affirmation of Bonnie G. Levy, Esq., Assistant Attorney General, with Exhibit (Affidavit of Janet Barringer, with Exhibits) (M-78892) 2, 3
Initially, this Court notes that its Order to Show Cause (M-78757) was sent to Claimant and Defense counsel by the Clerk of the Court on September 9, 2010. The document was sent to Claimant at the address he provided to the Court when he filed his claim, i.e., the Elmira Correctional Facility. The correspondence was returned to the Court on September 15, 2010 with the following written notation: "RTS [return to sender] Released". The Court notes that pursuant to § 206.6(f) of the Uniform Rules for the Court of Claims, changes in the address or telephone number of any attorney or pro se claimant shall be communicated in writing to the Clerk of the Court of Claims within 10 days of the change. It therefore appears that claimant has failed to comply with the rules of this Court requiring that he keep the Court apprised of his current address.
The Court also notes that the Court of Claims is a Court of limited jurisdiction, with power to hear claims against the State and certain public authorities (Court of Claims Act § 9). This Court does not have jurisdiction over Cayuga County, the named party defendant in this claim (Whitmore v State of New York, 55 AD2d 745, lv denied 42 NY2d 810).
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 October 4, 2010, 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.
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 foregoing, this Court does not have jurisdiction of the claim, and it must be dismissed.
Therefore, it is
ORDERED, that defendant's motion (M-78892) is hereby GRANTED; the Court's Order to Show Cause (M-78757) has been rendered moot; and it is further
ORDERED, that Claim No. 118239 is hereby DISMISSED.
October 26, 2010
Syracuse, New York
NICHOLAS V. MIDEY JR.
Judge of the Court of Claims