Claim was dismissed for lack of service.
|Claimant short name:||MOBLEY|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||FRANCIS T. COLLINS|
|Claimant's attorney:||Gerald Mobley, Pro Se|
|Defendant's attorney:||Honorable Andrew M. Cuomo, Attorney General
By: Paul F. Cagino, Esquire
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||April 13, 2010|
|See also (multicaptioned case)|
Defendant moves for dismissal of this claim pursuant to CPLR 3211 (a) (2) and (8) on the ground that the Attorney General was not served with a copy of the claim as required by Court of Claims Act § 11 (a).
The instant claim filed on April 13, 2009 alleges the defendant failed to properly diagnose a fractured wrist following a basketball injury which occurred on December 20, 2006 while the claimant was in the custody of the Department of Correctional Services. A notice of intention to file a claim was properly served on February 9, 2007, according to both the allegations in the claim and defense counsel. Defendant asserts, however, that it was not served with a copy of the claim as required by Court of Claims Act § 11 (a) and the time to do so has now expired (Court of Claims Act § 10 ).
Defendant's motion to dismiss the claim is supported by an affidavit from Janet A. Barringer, Senior Clerk in the Albany Office of the Attorney General, who avers that she searched the electronic database maintained by the Attorney General's office and found no record that this claim was served upon the Attorney General.
Court of Claims Act § 11(a) (I) provides, in relevant part, that a copy of the claim "shall be served upon the attorney general . . . either personally or by certified mail, return receipt requested . . . ". The Court of Appeals has noted in interpreting this provision that "statutory requirements conditioning suit must be strictly construed" (Dreger v New York State Thruway Auth., 81 NY2d 721, 724 ). The failure to serve a claim results in the lack of subject matter jurisdiction, which may not be waived (Finnerty v New York State Thruway Auth., 75 NY2d 721, 723 ; Johnson v State of New York, 71 AD3d 1355 ; Rodriguez v State of New York, 307 AD2d 657 ). Defendant has established that no claim was served upon the Attorney General. No opposition to the motion having been submitted, defendant's motion is granted and the claim is dismissed.
April 13, 2010
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims
The Court considered the following papers:
4. Claim filed April 13, 2009.