|Claimant(s):||ANTOINE RAHMAN HATCHER, JR.|
|Claimant short name:||HATCHER, JR.|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||JUDITH A. HARD|
|Claimant's attorney:||Antoine Rahman Hatcher, Jr., Pro Se|
|Defendant's attorney:||Hon. Andrew M. Cuomo, NYS Attorney General
By: Carol A. Cocchiola, Assistant Attorney General, Of Counsel
|Third-party defendant's attorney:|
|Signature date:||August 17, 2010|
|See also (multicaptioned case)|
Defendant moves to dismiss the claim on the ground that the Court lacks personal jurisdiction over defendant and subject matter jurisdiction over the claim, because the Claim was never served upon the Attorney General. Claimant, an inmate proceeding pro se, has not submitted any opposition to the defendant's motion. For the reasons set forth below, this Court grants defendant's motion to dismiss and dismisses Claim No. 106690.
The underlying claim, which was filed on September 25, 2002, alleges bailment, harassment and assault. According to the claim, the date of accrual is September 20, 2002.
In support of its motion to dismiss, defendant submits the affidavit of Janet Barringer, a Senior Clerk in the Albany Office of the Attorney General of the State of New York. According to her affidavit, Ms. Barringer conducted a search of the records of the Office of the Attorney General, Claims Bureau, and found no record that the subject claim was ever served on the Attorney General.
A claim of any inmate in the custody of the Department of Correctional Services for recovery of damages for injury to or loss of personal property 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 § 10 ). A claim for an intentional tort or an unintentional tort must be filed and served upon the Attorney General within 90 days after the date of accrual, unless the claimant, within said time, serves the Attorney General with a written notice of intention to file a claim, in which event the claim would need to be filed and served upon the Attorney General within two years after accrual of the claim for an unintentional tort or within one year after accrual of the claim for an intentional tort (Court of Claims Act §§10 , 10 [3-b]). Claims and notices of intention to file a claim must be served upon the Attorney General by personal service or certified mail, return receipt requested (Court of Claims Act §11[a]).
Compliance with the 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 and failure to comply constitutes a fatal jurisdictional defect requiring dismissal (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]).
Based upon the evidence before it, the Court concludes that claimant failed to serve a copy of the subject claim on the Office of the Attorney General in accordance with sections 10 and 11 of the Court of Claims Act. Accordingly, defendant's motion to dismiss (M-78493) is granted and Claim No. 106690 is dismissed.
August 17, 2010
Albany, New York
JUDITH A. HARD
Judge of the Court of Claims
1. Defendant's Notice of Motion to Dismiss and Affirmation of Carol A. Cocchiola, AAG, dated June 22, 2010, with Exhibits;
2. No Opposition.
Papers Filed: Claim, filed September 25, 2002; Order of Hon. Susan Phillips Read, Presiding Judge, filed October 18, 2002.