Opinion
# 2018-038-516 Claim No. 129804 Motion No. M-90966 Cross-Motion No. CM-91190
01-25-2018
LYDELL WASHINGTON v. THE STATE OF NEW YORK AND TROOPER MATTHEW ROSS, NEW YORK STATE POLICE
LAW OFFICE OF ANDREW BERSIN By: Andrew Bersin, Esq. ERIC T. SCHNEIDERMAN, Attorney General of the State of New York By: Glenn C. King, Assistant Attorney General
Synopsis
Claim dismissed for failure to serve the Attorney General. Cross motion pursuant to Court of Claims Act § 10 (6) denied as jurisdictionally defective due to absence of proposed claim.
Case information
| UID: | 2018-038-516 |
| Claimant(s): | LYDELL WASHINGTON |
| Claimant short name: | WASHINGTON |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK AND TROOPER MATTHEW ROSS, NEW YORK STATE POLICE |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 129804 |
| Motion number(s): | M-90966 |
| Cross-motion number(s): | CM-91190 |
| Judge: | W. BROOKS DeBOW |
| Claimant's attorney: | LAW OFFICE OF ANDREW BERSIN By: Andrew Bersin, Esq. |
| Defendant's attorney: | ERIC T. SCHNEIDERMAN, Attorney General of the State of New York By: Glenn C. King, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | January 25, 2018 |
| City: | Saratoga Springs |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
This claim names the State of New York, New York State Trooper Matthew W. Ross and the New York State Police as defendants and it seeks compensation for injuries claimant sustained after having been allegedly tasered, punched and arrested by Trooper Ross in Plattsburgh, New York on March 24, 2017. This claim was filed with the Clerk of the Court of Claims on June 8, 2017, claimant did not file an affidavit of service of the claim, and no answer to the claim was filed. By order to show cause dated August 24, 2017, claimant was directed to demonstrate why the claim should not be dismissed for lack of service upon the Attorney General of the State of New York (Motion No. M-90966). The New York State Attorney General responded to the Order to Show Cause, and claimant filed a cross motion seeking permission to file a late claim (CM-91190), which defendant opposes.
Court of Claims Act § 11 (a) (i) requires service of this claim upon the Attorney General. It is well established that the filing and service requirements of the Court of Claims Act are jurisdictional in nature, and that the failure to timely serve the claim upon the Attorney General deprives the Court of subject matter jurisdiction (see Finnerty v New York State Thruway Auth., 75 NY2d 721, 722-723 [1989]; Matter of Dreger v New York State Thruway Auth., 177 AD2d 762, 762-763 [3d Dept 1991], affd 81 NY2d 721 [1992]; Locantore v State of New York, UID No. 2009-038-517 [Ct Cl, DeBow, J., Feb. 11, 2009]).
The Assistant Attorney General defending the claim avers that the Office of the Attorney General initially became aware of this claim after it was forwarded by Trooper Ross to the Office of the Attorney General (see King Affirmation, ¶ 3), and defendant's submission demonstrates that the claim was not served on the Attorney General (King Affirmation, Exhibit A [Mantell Affidavit, ¶¶ 5-8]). Claimant's cross motion is accompanied by an affidavit of service proving service of the claim on Trooper Ross on June 19, 2017 (see Bersin Affirmation in Support of Cross Motion, Exhibit 1 [Affidavit of Service, sworn to June 27, 2017]), but claimant has not demonstrated that the claim was ever served upon the Attorney General. Thus, it has been established without dispute that the claim was never served upon the Attorney General and accordingly, it must be dismissed for lack of jurisdiction.
Claimant's cross motion for leave to file a late claim is jurisdictionally defective because it is not accompanied by a proposed claim, as required by Court of Claims Act § 10 (6) (see Davis v State of New York, 28 AD2d 609 [3d Dept 1967]; Di Bacco v State of New York, 57 Misc 2d 832, 834 [Ct Cl 1968]; Thompson v State of New York, UID No. 2008-044-577 [Ct Cl, Schaewe, J., Sept. 9, 2008]). Thus, the cross motion pursuant to Court of Claims Act § 10 (6) must be denied.
Accordingly, it is
ORDERED, that claim number 129804 is DISMISSED; and it is further
ORDERED, that claimant's cross motion CM-91190 is DENIED.
January 25, 2018
Saratoga Springs, New York
W. BROOKS DeBOW
Judge of the Court of Claims Papers considered: (1) Claim Number 129804, filed June 8, 2017; (2) Order to Show Cause (M-90966), filed August 29, 2017; (3) Affirmation of Glenn C. King, AAG, dated October 2, 2017, with Exhibit A (Affidavit of Debra L. Mantell, sworn to September 29, 2017); (4) Notice of Cross Motion (CM-91190), dated September 29, 2017; (5) Affirmation of Andrew Bersin, Esq., in Support of Cross Motion for Leave to File a Late Claim, dated September 29, 2017, with Exhibits 1-3; (6) Affirmation of Glenn C. King, AAG, in Opposition to Cross Motion for Leave to File a Late Claim, dated November 10, 2017.