Defendant's motion to dismiss claim for lack of service was granted, and the claim was dismissed.
|Claimant(s):||DENNIS NELSON, 94B0694|
|Claimant short name:||NELSON|
|Footnote (claimant name) :|
|Defendant(s):||STATE OF NEW YORK|
|Footnote (defendant name) :||The caption has been amended sua sponte to reflect the only properly named defendant.|
|Judge:||FRANCIS T. COLLINS|
|Claimant's attorney:||No Appearance|
|Defendant's attorney:||Honorable Letitia James, Attorney General
By: Glenn C. King, Esq., Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||December 27, 2019|
|See also (multicaptioned case)|
Defendant moves to dismiss the claim pursuant to CPLR 3211 (a) (2) on the ground it was not served upon the Attorney General as required by Court of Claims Act §11 (a) (i). The claim, filed June 26, 2017, alleges the claimant was injured as a result of stomach surgery performed on January 28, 2017.
Defendant's contention that the claim was not served upon the Attorney General is supported by both defense counsel's affirmation and the affidavit of Debra L. Mantell, Legal Assistant II in the Albany Office of the Attorney General. Defense counsel states that based upon his personal review of the file maintained by the Office of the Attorney General there is no record evidencing service of a claim in this matter. Ms. Mantell states in her affidavit that it is the usual business practice of the Attorney General's Office to record the receipt of claims in its digital case-management system, and that her searches of this system failed to reflect that a claim in this matter was served on the Office of the Attorney General.
The State's waiver of immunity under section 8 of the Court of Claims Act is contingent upon claimant's compliance with the specific conditions to suit set forth in article II of the Court of Claims Act (Lepkowski v State of New York, 1 NY3d 201, 206 ). Among these conditions is that contained in Court of Claims Act § 11 (a) (i) which provides, in relevant part, that a copy of the claim "shall be served personally or by certified mail, return receipt requested, upon the attorney general within the times hereinbefore provided for filing with the clerk of the court." The failure to serve a claim upon the Attorney General is a non-waivable jurisdictional defect which divests this Court of subject matter jurisdiction (Finnerty v New York State Thruway Auth., 75 NY2d 721, 723 ; Caci v State of New York, 107 AD3d 1121 [3d Dept 2013]; Johnson v New York State, 71 AD3d 1355, 1355 [3d Dept 2010], lv denied 15 NY3d 703 ; cf. Court of Claims Act § 11 [c] [ii]).
Defendant established in support of its motion that the claim was not served upon the Attorney General as required by Court of Claims Act § 11 (a) (i) and no affidavit of service was filed in the Office of the Clerk of the Court of Claims. There being no opposition to the motion and in the absence of any evidence establishing that the claim was served upon the Attorney General, dismissal of the claim is required.
Accordingly, defendant's motion is granted, and the claim is dismissed.
December 27, 2019
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims