Opinion
# 2015-015-082 Claim No. 124024 Motion No. M-86879 Cross-Motion No. CM-87042
10-23-2015
CARLOS PETERSON v. THE STATE OF NEW YORK
Carlos Peterson, Pro Se Honorable Eric T. Schneiderman, Attorney General By: Paul F. Cagino, Esquire Assistant Attorney General
Synopsis
Claimant's motion for a default judgment was denied and defendant's cross motion for dismissal based upon lack of service of the claim was granted.
Case information
| UID: | 2015-015-082 |
| Claimant(s): | CARLOS PETERSON |
| Claimant short name: | PETERSON |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 124024 |
| Motion number(s): | M-86879 |
| Cross-motion number(s): | CM-87042 |
| Judge: | FRANCIS T. COLLINS |
| Claimant's attorney: | Carlos Peterson, Pro Se |
| Defendant's attorney: | Honorable Eric T. Schneiderman, Attorney General By: Paul F. Cagino, Esquire Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | October 23, 2015 |
| City: | Saratoga Springs |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant moves for entry of a default judgment and defendant cross-moves to dismiss the claim pursuant to CPLR 3211 (a) (2) and (8) on the ground the claim was not served upon the Attorney General as required by Court of Claims Act §§ 10 and 11 (a) (i).
Claimant, an inmate proceeding pro se, filed the instant claim on March 10, 2014 seeking damages for wrongful confinement arising from criminal convictions for which he maintains his innocence.
Notably, the Judgment of conviction was affirmed (People v Peterson, 71 AD3d 1419 [4th Dept 2010], lv denied 14 NY3d 891 [2010], reconsideration denied 21 NY3d 1008 [2013]).
Claimant failed to submit an affidavit of service of the claim either in support of his motion for default judgment or in opposition to defendant's cross motion to dismiss the claim for lack of service. Defendant, on the other hand, submitted in support of its cross motion an affidavit from Janet Barringer, Senior Clerk in the Office of the Attorney General, in which Ms. Barringer avers that she searched the electronic database maintained by the Attorney General's Office and found no record that the instant claim was served upon the Attorney General.
The law is clear that 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 [2003]). Among these conditions is the service requirement 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 [1989]; 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 [2010]; cf. Court of Claims Act § 11 [c] [ii]).
Defendant established through the affidavit of Janet Barringer that no claim was served upon the Attorney General. In opposition to the cross motion, claimant submitted a copy of the Docket Sheet which reflects, among other things, that a claim was filed on March 10, 2014. Claimant appears to be unaware of the fact that "[u]nder section 11, both filing with the court and service on the Attorney-General must occur within the applicable limitations period" (Dreger v New York State Thruway Auth., 81 NY2d 721 [1992]). Insofar as the instant claim was not served upon the Attorney General as required, the action was not properly commenced and defendant's time to answer the claim did not begin to run (see 22 NYCRR 206.7 [a]).
As a result, claimant's motion for entry of a default judgment is denied and defendant's cross motion is granted and the claim is dismissed.
October 23, 2015
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims The Court considered the following papers:
1. Undated notice of motion filed June 12, 2015;
2. Affidavit of Carlos Peterson sworn to June 9, 2015;
3. Notice of cross-motion dated July 22, 2015;
4. Affirmation of Paul F. Cagino dated July 22, 2015 with exhibits;
5. Written objection of Carlos Peterson filed August 29, 2015 with exhibits.