State's motion to dismiss claimant's amended claim granted, amended claim not served upon the State.
|Claimant short name:||SANDER|
|Footnote (claimant name) :|
|Defendant(s):||Department of - The State of New York|
|Footnote (defendant name) :|
|Claimant's attorney:||MARIE SANDER
|Defendant's attorney:||HON. BARBARA D. UNDERWOOD
Attorney General for the State of New York
By: Matthew H. Feinberg, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||November 7, 2018|
|See also (multicaptioned case)|
The following papers numbered 1-2 were read and considered by the Court on the State's motion to dismiss claimant's amended claim:
Notice of Motion, Attorney's Supporting Affirmation and Exhibits........................1
Claimant's Opposition Papers Filed-Stamped October 12, 2018.............................2
By Decision and Order of the Court (Sander v State of New York, UID No. 2018-054-102 [Ct Cl, Rivera, J., October 2, 2018]), the State's unopposed motion to dismiss Claim No. 131726 was granted on the grounds that the claim was jurisdictionally defective because it was not properly verified, was untimely and did not allege a cognizable cause of action upon which relief may be had against the State of New York (Motion No. M-92792).
Thereafter, the State moved to dismiss the amended claim on the ground that a copy of the amended claim was not served upon the State. In support of its motion, the State submits an affidavit sworn to on September 26, 2018 by Min Chul Rhee, a Legal Assistant I in the Claims Bureau in the New York City office of the Attorney General (Ex. B). Rhee affirmed that a thorough search of the computer filing system of the office of the Attorney General failed to locate any record of receipt of a copy of the amended claim.
Court of Claims Act § 11 (a) (i) requires that a copy of the claim be served on the Attorney General either personally or by certified mail, return receipt requested, within the time provided for filing with the clerk of the court (see Trimble v State of New York, 142 AD3d 1256 [3d Dept 2016]). This requirement is jurisdictional in nature and the failure to comply with it mandates dismissal of the claim (see Encarnacion v State of New York, 133 AD3d 1049, 1050 [3d Dept 2015]).
The Court finds that the State offered sufficient proof to establish that an amended claim was not served upon the State. While claimant opposes the State's motion, claimant does not offer any proof that a copy of the amended claim was served upon the State. Thus, the Court finds that the amended claim warrants dismissal on the ground that it was not served upon the State.
Accordingly, the State's motion to dismiss the amended claim is hereby GRANTED.
November 7, 2018
White Plains, New York
Judge of the Court of Claims