Motion to dismiss granted, defendant not served.
|Claimant short name:||MATTHEWS|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Claimant's attorney:||MARK MATTHEWS
|Defendant's attorney:||HON. ERIC T. SCHNEIDERMAN
Attorney General for the State of New York
By: Paul F. Cagino, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||January 30, 2018|
|See also (multicaptioned case)|
The following papers were read and considered by the Court on the State's unopposed motion to dismiss:
Notice of Motion, Attorney's Supporting Affirmation and Exhibit
Defendant moves to dismiss the claim on the ground that the State was never served with a copy of the claim.
Claimant filed Claim No. 127328 with the Court on January 6, 2016. Claimant, however, never served defendant with a copy of the claim. Defendant submits an affidavit sworn to on January 3, 2018 by Debra L. Mantell, a Legal Assistant II in the Office of the Attorney General, in support of defendant's motion to dismiss (Defendant's Ex. A). Mantell affirmed that she searched defendant's digital case management system and did not find any record of receipt of either a Notice of Intention to File a Claim or a copy of the claim (id).
Section 11 of the Court of Claims Act requires that the claim be "served …, upon the attorney general …" (Court of Claims Act § 11). Compliance with Section 11 of the Court of Claims Act regarding the service requirements constitutes "a jurisdictional prerequisite to the bringing and maintaining an action in this Court" (Byrne v State, 104 AD2d 782, 783 [2d Dept 1984]). "[F]ailure to … comply with the statutory filing requirements of the Court of Claims Act constitutes a fatal jurisdictional defect requiring dismissal" (Ivy v State of New York, 27 AD3d 1190 [4th Dept 2006]).
The Court finds that the defendant has offered sufficient proof to establish that defendant was not served with either a Notice of Intention to File a Claim or a copy of the claim. Claimant has not submitted any opposition to the motion. Accordingly, the Court finds that the Court lacks jurisdiction over the claim due to the claimant's failure to timely serve defendant with either a notice of intention or a copy of the claim as required by Court of Claims Act § 11 (a) (i).
Defendant's motion to dismiss is GRANTED and the claim is dismissed.
January 30, 2018
White Plains, New York
Judge of the Court of Claims