Opinion
# 2017-041-036 Claim No. 125496 Motion No. M-90144
05-25-2017
CARLOS PETERSON v. THE STATE OF NEW YORK
CARLOS PETERSON Pro Se HON. ERIC T. SCHNEIDERMAN New York State Attorney General By: Paul F. Cagino, Esq. Assistant Attorney General
Synopsis
Claimant's motion for a default judgment is denied and the claim is dismissed as jurisdictionally defective due to claim not having been served on the Attorney General.
Case information
| UID: | 2017-041-036 |
| Claimant(s): | CARLOS PETERSON |
| Claimant short name: | PETERSON |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | The caption is amended to state the proper defendant. |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 125496 |
| Motion number(s): | M-90144 |
| Cross-motion number(s): | |
| Judge: | FRANK P. MILANO |
| Claimant's attorney: | CARLOS PETERSON Pro Se |
| Defendant's attorney: | HON. ERIC T. SCHNEIDERMAN New York State Attorney General By: Paul F. Cagino, Esq. Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | May 25, 2017 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant moves for a default judgment on his claim which was filed on January 7, 2015. The defendant opposes the claimant's motion because, according to the affirmation of defendant's attorney and the affidavit of a legal assistant employed by the defendant's attorney, the claim was never served on the Attorney General.
Claimant has failed to comply with any of the requirements of CPLR 3215 (f) in his application for a default judgment. In addition, the unrebutted proof offered by defendant demonstrates that the claim was never served on the defendant. The claimant's motion for a default judgment is denied.
Court of Claims Act 11 (a) (i), provides, at relevant part, as follows:
"The claim shall be filed with the clerk of the court; and, . . . a copy shall be served upon the attorney general within the times hereinbefore provided for filing with the clerk of the court either personally or by certified mail, return receipt requested, . . . . Any notice of intention shall be similarly served upon the attorney general within the times hereinbefore provided for service upon the attorney general. . . ."
Courts have consistently held that "[a]s a condition of the State's limited waiver of sovereign immunity, those requirements [timely filing and service] are strictly construed and a failure to comply therewith is a jurisdictional defect compelling the dismissal of the claim" (Welch v State of New York, 286 AD2d 496, 497-498 [2d Dept 2001]; see Robinson v State of New York, 38 AD3d 1030 [3d Dept 2007]; Pizarro v State of New York, 19 AD3d 891, 892 [3d Dept 2005], lv denied 5 NY3d 717 [2005]).
The claim is jurisdictionally defective because it was never served on the Attorney General and is dismissed of the Court's own initiative.
Even assuming the claim had been served on the defendant on January 5, 2015, the date set forth in a defective "Affidavit of Service" attached to the filed claim, the claim must still be dismissed because claimant failed to move for a default judgment within one year of defendant's alleged default.
CPLR 3215 (c) provides as follows:
"If the plaintiff fails to take proceedings for the entry of judgment within one year after the default, the court shall not enter judgment but shall dismiss the complaint as abandoned, without costs, upon its own initiative . . . ."
Claimant's motion for a default judgment is denied. The claim is dismissed.
May 25, 2017
Albany, New York
FRANK P. MILANO
Judge of the Court of Claims
Papers Considered:
1. Claimant's Notice of Motion For Default Judgment, filed March 9, 2017; 2. Affirmation of Paul F. Cagino, dated April 24, 2017, and attached exhibits, including the affidavit of Debra L. Mantell, sworn to April 20, 2017; 3. Unsworn objection of claimant, received May 3, 2017.