|Claimant short name:||RAMOS|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :||The caption has been amended to reflect that the State of New York is the properly named defendant.|
|Judge:||Alan C. Marin|
|Claimant's attorney:||Miguel Ramos, Pro Se|
|Defendant's attorney:||Andrew M. Cuomo, Attorney General
By: Carol A. Cocchiola, Esq., AAG
|Third-party defendant's attorney:|
|Signature date:||June 22, 2010|
|See also (multicaptioned case)|
The State of New York moves to dismiss the claim of Miguel Ramos on the ground that the claim has never been served on the Office of the Attorney General. In his claim, which was filed with the Clerk of the Court of Claims on May 14, 2003, Mr. Ramos separately alleges that: (1) he caught an infection at Woodbourne Correctional Facility; (2) he was denied access to a psychologist and instead sent to the Special Housing Unit and (3) that a correction officer called him a rapist in front of other officers and improperly read his mail. As to the foregoing, the claim states that it accrued on an unspecified date in November 2002, January 10, 2003, and January 11, 2003, respectively.
Defendant submits the affidavit of a senior clerk in the Albany Office of the Attorney General, who states that she made a thorough search of the records of the Claims Bureau of such office, and that there is no record that the claim was ever served on the Attorney General.
Section 10 of the Court of Claims Act (the "Act") provides that a claim such as this must be filed with the Court and served on the Office of the Attorney General within 90 days of accrual unless a notice of intention is served within such time frame, after which the claim must then be served and filed within two years. Section 11 of the Act provides that the Attorney General must be served either personally or by certified mail, return receipt requested.
"It is well established that compliance with sections 10 and 11 of the Court of Claims Act pertaining to the timeliness of filing and service requirements respecting claims and notices of intention to file claims constitutes a jurisdictional prerequisite to the institution and maintenance of a claim against the State, and accordingly, must be strictly construed . . ." Byrne v State of New York, 104 AD2d 782, 783 (2d Dept 1984), lv denied 64 NY2d 607 (1985) (citations omitted). See also Mallory v State of New York, 196 AD2d 925 (3d Dept 1993).
Claimant opposes this motion, and states that he sent the claim to the Office of the Attorney General on or around January 19, 2003, and again on or around June 2, 2003. In that regard, he submits a copy of an "Affidavit in Support of Application Pursuant to CPLR 1101(f)," page 1 of which is a preprinted form, and page 2 of which is handwritten and has a check mark in the box next to a statement that "a notice of intention to [file] a claim was served on or around January 19th - June 2nd, [which] date was within 90 days of accrual." This handwritten second page differs from page 2 of the copy of the CPLR 1101(f) affidavit that Ramos submitted to the Court, but in any event, it refers not to the service of a claim, but rather to a notice of intention.(2) Moreover, even if it did refer to a claim, there is no indication that such was served personally or by certified mail, return receipt requested.
Aside from the above, the only other submission by claimant referring to service on defendant is an affidavit of service notarized on June 2, 2003, which states that a "copy of claim intention of" was sent to "Attorney General Elliot Spitzer" on an unspecified date in "May 2003" by certified mail, return receipt requested. It is unclear whether this is meant to refer to a claim or notice of intention, but in any event, there is no indication of where the claim was sent. Moreover, claimant has failed to submit a copy of any "green card" certified mail return receipt, which would demonstrate service on the Attorney General.
In view of the foregoing, I cannot find that Ramos has demonstrated that he served his claim on the Office of the Attorney General as required by §§10 and 11 of the Act, and this Court thus lacks jurisdiction over his claim. Accordingly, having reviewed the submissions(3) , IT IS ORDERED that motion no. M-78255 be granted and that claim no. 107744 be dismissed.
June 22, 2010
New York, New York
Alan C. Marin
Judge of the Court of Claims
2. It should be noted that claimant does not argue that he thereafter served a claim within two years of accrual.
3. The following were reviewed: defendant's notice of motion with affirmation in support and exhibit 1 with sub-exhibit A; and claimant's submission filed June 4, 2010 with Claim, "Affidavit in Support of Application Pursuant to CPLR 1101(f)," verification, and exhibits 1, 2, 1-A,1-C and 1-B