|Claimant short name:||GRIFFIN|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||JUDITH A. HARD|
|Claimant's attorney:||Anthony Griffin, Pro Se|
|Defendant's attorney:||Hon. Andrew M. Cuomo, NYS Attorney General
By: Roberto Barbosa, Assistant Attorney General, Of Counsel
|Third-party defendant's attorney:|
|Signature date:||June 9, 2010|
|See also (multicaptioned case)|
Defendant moves this Court for an order dismissing the claim upon the grounds that the Court does not have personal jurisdiction over the State of New York and does not have subject matter jurisdiction over the claim, because claimant failed to properly serve defendant with the claim. Claimant opposes the motion on the basis that he unsuccessfully attempted to serve the claim upon defendant three times and that he was unaware of legal procedures.
The underlying claim alleges that when claimant arrived at Clinton Correctional Facility from Southport Correctional Facility on June 4, 2009, one of his property bags was, and continues to remain, missing.
In support of its motion, defendant states that claimant served defendant with a notice of intention to file a claim by certified mail, return receipt requested, on October 30, 2009, and a claim by regular mail on March 1, 2010. Defendant argues that because claimant failed to serve the claim upon defendant either by personal service or by certified mail, return receipt requested, in accordance with the Court of Claims Act § 11(a), the claim should be dismissed. In support of its position, defendant states that claimant's service of the notice of intention to file a claim is of no legal consequence because service of a notice of intention to file a claim which alleges a bailment cause of action does not extend the time within which claimant is required to file and serve a claim. The Court agrees.
Pursuant to Court of Claims Act § 10 (9), an inmate's claim for bailment must be filed and served within one hundred twenty days after the date on which the inmate has exhausted the personal property claims administrative remedy. Court of Claims Act § 11 requires that service of the claim on the Attorney General's Office be made either by personal service or certified mail, return receipt requested.
Compliance with the filing and service requirements contained in sections 10 and 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 ; 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]).
Ignorance of the law is not an acceptable explanation for the failure to serve a timely claim, nor is an inmate's allegation that he is incarcerated and without access to legal references (see Matter of Sandlin v State of New York, 294 AD2d 723 [3d Dept 2002]).
In the present case, although claimant appears to allege an accrual date of June 4, 2009 in one of the documents annexed to his claim, he makes reference to the superintendent disapproving his facility claim on September 27, 2009. Giving claimant the benefit of this later date, his claim should have been filed and served upon defendant on or before January 25, 2010. Claimant's failure to serve his claim upon defendant on or before said date constitutes a fatal jurisdictional defect and requires dismissal of the claim.
Based upon the foregoing, defendant's motion to dismiss is granted and claim number 117857 is dismissed.
June 9, 2010
Albany, New York
JUDITH A. HARD
Judge of the Court of Claims
1. Notice of Motion and Affirmation of Roberto Barbosa, AAG, dated March 8, 2010, with Exhibit;
2. Letter from Anthony Griffin, dated March 15, 2010, submitted in response to defendant's Motion to Dismiss.
Papers Filed: Claim, filed December 29, 2009; Order of Hon. Richard E. Sise, Presiding Judge, filed January 21, 2010.