Claimant brought a claim alleging breach of an implied contract after being terminated from a SUNY Ph.D program. No answer to the claim was filed and the Court by Order to Show Cause ordered the parties to submit statements regarding the service of this claim. Claimant failed to respond to the Court's Order to Show Cause and as SUNY demonstrated that no claim was timely served upon the Attorney General, the claim is dismissed.
|Claimant short name:||GERRISH|
|Footnote (claimant name) :|
|Defendant(s):||STATE UNIVERSITY OF NEW YORK AT BUFFALO|
|Footnote (defendant name) :|
|Judge:||J. DAVID SAMPSON|
|Claimant's attorney:||HOUSH LAW OFFICES, PLLC
BY: Frank Housh, Esq.
|Defendant's attorney:||HON. BARBARA D. UNDERWOOD
New York State Attorney General
BY: Wendy E. Morcio, Esq.
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||December 6, 2018|
|See also (multicaptioned case)|
Claimant Robert Gerrish alleges in claim no. 130931 that the defendant breached an implied contract on February 1, 2012, when it terminated claimant from its Ph.D. program. No answer to the claim was filed raising questions regarding service of the claim upon the Attorney General. By Order to Show Cause (OTSC) dated August 13, 2018, this Court ordered the parties to submit statements regarding the service of claim no. 130931 on the Attorney General in compliance with Court of Claims Act §§ 10 and 11. Claimant failed to respond to the Court's OTSC.
In order to commence an action in the Court of Claims, a claim must be filed and a copy served upon the Attorney General. Sections 10 (4) and 11 (a) (i) of the Court of Claims Act provide that a claim for breach of contract must be filed and served upon the Attorney General personally or by certified mail, return receipt requested, within six (6) months of accrual of the claim unless the claimant shall, within the same six (6) month period, serve upon the Attorney General a notice of intention to file a claim, in which event the claim shall be filed and served upon the Attorney General within two (2) years of accrual of the claim. The service requirements of the Court of Claims Act are jurisdictional in nature and must be strictly construed (Dreger v New York State Thruway Auth., 81 NY2d 721 ). The failure to comply with the service requirements of the Court of Claims Act deprives the Court of jurisdiction, requiring dismissal of the claim (Finnerty v New York State Thruway Auth., 75 NY2d 721 ; Byrne v State of New York, 104 AD2d 782 [2d Dept 1984], lv denied 64 NY2d 607 ).
In response to the Court's Order to Show Cause, Assistant Attorney General Wendy E. Morcio submitted the affidavit of Debra L. Mantell (defendant's Exhibit A), a Legal Assistant II in the Albany, New York Office of the Attorney General (OAG). According to Ms. Mantell, a search of OAG's digital case management system was conducted after receiving a letter from the Court advising that a claim regarding this matter had been filed on February 1, 2018. This search found no record that this claim had been served upon the Attorney General. In September of 2018, OAG conducted a second search of its digital case management system which, once again, failed to disclose any record to show that OAG had received a notice of intention to file a claim and/or a claim by Robert Gerrish arising out of an incident which occurred on or about February 1, 2012.
Claimant failed to respond to the Court's OTSC, there is no affidavit of service attached to the claim as filed, and claimant's time within which to serve a claim has long expired. As a result, claim no. 130931 is jurisdictionally defective as no claim was timely served upon the Attorney General (Ivy v State of New York, 27 AD3d 1190 [4th Dept 2006]).
Based on the foregoing, claim no. 130931 is dismissed.
December 6, 2018
Buffalo, New York
J. DAVID SAMPSON
Judge of the Court of Claims
The following were read and considered by the Court:
1. Order to Show Cause dated August 13, 2018;
2. Affidavit of Assistant Attorney General Wendy E. Morcio sworn to September 26, 2018; and
3. Affidavit of Debra L. Mantell sworn to September 26, 2018.