New York State Court of Claims

New York State Court of Claims
YU v. NYS and NYC Child support office, # 2018-054-103, Claim No. 130481, Motion Nos. M-92632, M-92659

Synopsis

Claim dismissed, no service upon defendant.

Case information

UID: 2018-054-103
Claimant(s): WEN ZONG YU
Claimant short name: YU
Footnote (claimant name) :
Defendant(s): NYS and NYC Child support office
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 130481
Motion number(s): M-92632, M-92659
Cross-motion number(s):
Judge: WALTER RIVERA
Claimant's attorney: WEN ZONG YU
Pro Se
Defendant's attorney: HON. BARBARA D. UNDERWOOD
Attorney General for the State of New York
By: Nicole M. Procida, Assistant Attorney General
Third-party defendant's attorney:
Signature date: November 21, 2018
City: White Plains
Comments:
Official citation:
Appellate results:
See also (multicaptioned case)

Decision

The following papers numbered 1-4 were read and considered by the Court on the Court's Order to Show Cause (Motion No. M-92632) as to why the claim should not be dismissed:

Order to Show Cause................................................................................................1

Claimant's Letter Dated August 29, 2018 and Exhibits............................................2

Affidavit of Min Chul Rhee Sworn to on October 1, 2018......................................3

Claimant's Letter Dated October 13, 2018 and Exhibits..........................................4

The following papers numbered 1-4 were read and considered by the Court on claimant's motion (Motion No. M-92659) for "emergency exempt money" relating to Queens County Family Court child support orders:

Notice of Motion, "Notice of Motion Brief" and Exhibits.......................................1

Affirmation in Opposition and Exhibits.....................................................................2

Claimant's Letter Dated August 29, 2018 and Exhibits............................................3

Claimant's Letter Dated October 13, 2018 and Exhibits..........................................4

The claim was filed with the Court on October 30, 2017. The State did not file an answer. By Order to Show Cause, the Court directed the parties to submit papers regarding the service of the claim upon the State.(1)

The State submitted an affidavit sworn to on October 1, 2018 by Min Chul Rhee, a Legal Assistant I in the Claims Bureau of the New York City Office of the Office of the Attorney General. Rhee affirmed that a thorough search of the State's digital case management system failed to locate any record of receipt of a copy of the claim (Rhee Affidavit). Claimant submitted papers in response to the Court's Order to Show Cause which did not address service of a copy of the claim upon the State; rather the papers focused on the requested equitable relief from the Court of Claims regarding Queens County Family Court proceedings.

The service requirements set forth in Court of Claims Act 10 and 11 are jurisdictional in nature and require strict compliance as a precondition of suit against the State (see Dreger v New York State Thruway Auth., 81 NY2d 721, 724 [1992]). A failure to comply with any of the service provisions is a jurisdictional defect compelling the dismissal of the claim (see Kolnacki v State of New York, 8 NY3d 277, 281 [2007] ["(t)he failure to satisfy any of the (statutory) conditions is a jurisdictional defect"]; Welch v State of New York, 286 AD2d 496, 497-98 [2d Dept 2001]). Both service and filing of the claim must occur within the statutory time period mandated by the Court of Claims Act (see Dreger v New York State Thruway Auth., 81 NY2d at 724). The Court finds that the State has established that a copy of the claim was not served upon the State. Thus, the Court is without jurisdiction over the claim. Moreover, this Court is a Court of limited jurisdiction which does not have jurisdiction over Queens County Family Court proceedings and does not have jurisdiction to grant equitable relief (Court of Claims Act 9).

Accordingly, it is ordered that the claim is DISMISSED and Motion No. M-92659 is DENIED as moot.

November 21, 2018

White Plains, New York

WALTER RIVERA

Judge of the Court of Claims


1. The State filed its papers on October 4, 2018, after the return date of September 19, 2018. The Court therefore adjourned the Order to Show Cause to November 21, 2018 to afford claimant the additional opportunity to submit papers by the new return date.