Unopposed motion to dismiss granted for lack of jurisdiction.
|Claimant short name:||RODRIGUEZ|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||Terry Jane Ruderman|
|Claimant's attorney:||PEDRO RODRIGUEZ
|Defendant's attorney:||HON. ANDREW M. CUOMO
Attorney General for the State of New York
By: Elyse Angelico, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||March 1, 2010|
|See also (multicaptioned case)|
The following papers were read and considered by the Court on defendant's unopposed motion to dismiss:
Notice of Motion, Supporting Affirmation and Exhibits, Affirmation and Exhibit
Claim No. 115867 alleges that, during claimant's incarceration, he had knee surgery on July 28, 2005 and defendant failed to provide him with adequate post-operative care which resulted in his need for a second surgery. The accrual date specified in the claim is July 29, 2005 (Filed Claim, Defendant's Ex. C) and the acts allegedly occurred at Mount Vernon Hospital and Sing Sing Correctional Facility (id.).
On September 22, 2008, a copy of the claim was served upon defendant beyond the 90 days after the claim accrued and by regular mail (Defendant's Ex. B). Accordingly, claimant failed to comply with the jurisdictional mandates of Court of Claims Act §§ 10 and 11. Defendant's answer asserted lack of jurisdiction due to claimant's failure to timely serve a notice of intention or a claim (Defendant's Ex. E, ¶11).
The service requirements set forth in Court of Claims Act §§ 10 and 11 are jurisdictional in nature and require strict compliance as a precondition of suit against the State (see Dreger v New York State Thruway Auth., 81 NY2d 721, 724). A failure to comply with any of the service provisions is a jurisdictional defect compelling the dismissal of the claim (see Kolnacki v State of New York, 8 NY3d 277, 281 ["(t)he failure to satisfy any of the (statutory) conditions is a jurisdictional defect"]; Welch v State of New York, 286 AD2d 496, 497-98).
Accordingly, the State's unopposed motion to dismiss is hereby GRANTED (CPLR 3211[a]).
March 1, 2010
White Plains, New York
Terry Jane Ruderman
Judge of the Court of Claims