Opinion
# 2011-018-237 Claim No. 116293 Motion No. M-80309
09-27-2011
CHARLES PETTY v. STATE OF NEW YORK
Synopsis
Claim dismissed - lack of personal and subject matter jurisdiction. Case information
UID: 2011-018-237 Claimant(s): CHARLES PETTY Claimant short PETTY name: Footnote (claimant name) : Defendant(s): STATE OF NEW YORK Footnote (defendant The Court has amended the caption sua sponte to reflect the name) : State of New York as the only proper defendant. Third-party claimant(s): Third-party defendant(s): Claim number(s): 116293 Motion number(s): M-80309 Cross-motion number (s): Judge: DIANE L. FITZPATRICK Claimant's No Appearance attorney: ERIC T. SCHNEIDERMAN Defendant's Attorney General of the State of New York attorney: By: Joel L. Marmelstein, Esquire Assistant Attorney General Third-party defendant's attorney: Signature date: September 27, 2011 City: Syracuse Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
Defendant brings this motion to dismiss the claim for lack of personal and subject matter jurisdiction. Claimant has not opposed the motion.
Defendant asserts that it was never served with the claim. In support of its position, it submits the affidavit of Janet Barringer, Senior Clerk in the Albany Office of the Attorney General. Ms. Barringer's duties require that she be familiar with the record keeping system in the Claims Bureau of the Attorney General's Office for notices of intentions which are served upon the Attorney General and/or claims filed in the Court of Claims or received in the office of the Attorney General.
Ms. Barringer indicates that the only documents Defendant has received relating to this inmate Claimant were a notice of intention on October 20, 2008, by regular mail, and a letter from the Chief Clerk of the Court of Claims dated January 21, 2009, acknowledging receipt of a Claim of "Charles Petty 07 R 4979 v the State of New York" on January 12, 2009 (see Defendant's Exhibit B).
The claim, which Claimant alleges accrued on June 1, 2008, seeks damages for the negligent loss of his prosthetic leg. Claimant asserts that on June 1, 2008, while he was in the Mess Hall at Riverview Correctional Facility, his prosthetic leg gave out. He went to the infirmary where they took his prosthesis, allegedly for repair, and gave Claimant crutches. Some time thereafter, he went to an outside doctor's appointment and was told to come back to the next appointment and bring his prosthetic leg. Upon returning to the correctional facility, Claimant went to the infirmary to retrieve his prosthetic leg only to find that one of the nurses had disposed of it.
The affidavit of service attached to the claim indicates that on Thursday, January 8, 2009, a claim was served upon the Attorney General of the State of New York by certified mail, return receipt requested. No address was provided for where the mail was allegedly sent.
In order to commence an action in the Court of Claims, service must be made upon the Attorney General in accordance with the provision of the Court of Claism Act §§ 10 and 11.
The requirements in Court of Claims Act §§ 10 and 11 are jurisdictional prerequisites to commencing an action in this Court (Byrne v State of New York, 104 AD2d 782, 783 [2d Dept 1984], lv denied 64 NY2d 607 [1985]). The failure to serve the Attorney General results in a failure of jurisdiction, which precludes this Court from hearing the claim (Finnerty v New York State Thruway Auth., 75 NY2d 721, 722 [1989]; Nish v Town of Poestenkill, 179 AD2d 929 [3d Dept 1992], appeal dismissed 79 NY2d 1040 [1992]).
Defendant has adequately placed in issue the service of the claim, placing the burden upon Claimant to come forward with some evidence of proper service. The incomplete affidavit of service attached to the claim is not sufficient given Defendant's proof of non-service of the claim (cf. Hodge v State of New York, 158 Misc 2d 438, 440 [Ct Cl 1993], affd 213 AD2d 766 [3d Dept 1995]) Claimant has failed to meet his burden by coming forward with proof that service was completed in accordance with the requirements of Court of Claims Act § 11 (a) (see Wern v D'Alessandro, 219 AD2d 646 [2d Dept 1995]). In fact, Claimant has not responded to the motion. Accordingly, Defendant's motion must be GRANTED and the claim DISMISSED.
September 27, 2011
Syracuse, New York
DIANE L. FITZPATRICK
Judge of the Court of Claims
The Court has considered the following in deciding this motion:
1) Notice of Motion.
2) Affirmation of Joel L. Marmelstein, Esquire, Assistant Attorney General, in support, with exhibits attached thereto.