|Claimant(s):||OTIS MICHAEL BRIDGEFORTH|
|Claimant short name:||BRIDGEFORTH|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||JUDITH A. HARD|
|Claimant's attorney:||Otis Michael Bridgeforth, Pro Se|
Hon. Andrew M. Cuomo, NYS Attorney General
By: Roberto Barbosa, Assistant Attorney General, Of Counsel
|Third-party defendant's attorney:|
|Signature date:||March 11, 2010|
|See also (multicaptioned case)|
Defendant brings a motion to dismiss Claim No. 116381 on the ground that the Court lacks personal jurisdiction over defendant. Claimant opposes the motion on the basis that he is incarcerated and indigent. For the reasons set forth herein, the Court grants defendant's motion and dismisses Claim No. 116381.
The underlying claim alleges that employees of defendant intentionally inflicted emotional distress upon claimant by depriving him access to a window and, further, denied him access to his asthma medication which resulted in multiple asthma attacks. According to the claim filed by claimant, the claim accrued on December 8, 2008.
After reviewing defendant's motion papers and claimant's papers in response, it is clear that the facts are not in dispute. Defendant alleges, and claimant agrees, that defendant was served with a Notice of Intention by regular mail on December 18, 2008; that the subject claim was filed with the Clerk of the Court on February 4, 2009; that by letter dated November 9, 2009, claimant inquired as to why defendant had not responded to his claim; that defendant responded with a letter, dated November 9, 2009, advising claimant that it had not been served with the claim; and that defendant was served with a copy of the claim by regular mail on November 25, 2009. Defendant argues that because it was not served with the Notice of Intention or the claim by personal service or certified mail, return receipt requested, the Court has been deprived of jurisdiction over defendant and the claim must be dismissed. Claimant argues, in opposition, that he has been incarcerated and is indigent and cannot serve defendant by personal service or certified mail.
Court of Claims Act § 11 (a)(i) states, in pertinent part, that the claim shall be filed with the Clerk of the Court, and a copy shall be served upon the Attorney General within the times provided for filing with the Clerk of the Court either personally or by certified mail, return receipt requested. It further states that any notice of intention shall be similarly served upon the Attorney General within the times provided for service upon the Attorney General (Court of Claims Act § 11 [a][i]).
Compliance with the filing and service requirements contained in Section 11 of the Court of Claims Act is a jurisdictional prerequisite to bringing and maintaining an action in the Court of Claims (Buckles v State of New York, 221 NY 418 ), and failure to comply constitutes a fatal jurisdictional defect requiring dismissal (Thomas v State of New York, 144 AD2d 882 [3d Dept 1988]; Finnerty v New York State Thruway Auth., 75 NY2d 721 ; Matter of Dreger v New York State Thruway Auth., 177 AD2d 762 [3d Dept 1991], affd 81 NY2d 721 ; Suarez v State of New York, 193 AD2d 1037 [3d Dept 1993]).
In light of the foregoing, defendant's motion to dismiss (M-77561) is granted and Claim No. 116381 is dismissed.
March 11, 2010
Albany, New York
JUDITH A. HARD
Judge of the Court of Claims
1. Notice of Motion and Affirmation of Roberto Barbosa, AAG, dated December 4, 2009, with Exhibits A-B;
2. Opposition papers of Claimant, dated December 14, 2009.
Papers Considered: Claim, filed February 4, 2009; Order of Hon. Richard E. Sise, Presiding Judge, filed on February 19, 2009.