Opinion
# 2013-010-049 Claim No. 122669 Motion No. M-83820
09-20-2013
KELEIK WATERS v. THE STATE OF NEW YORK
Synopsis
Defendant's motion to dismiss granted, claim not served on AG's office.
Case information
UID: 2013-010-049 Claimant(s): KELEIK WATERS Claimant short name: WATERS Footnote (claimant name) : Defendant(s): THE STATE OF NEW YORK Footnote (defendant name) : Third-party claimant(s): Third-party defendant(s): Claim number(s): 122669 Motion number(s): M-83820 Cross-motion number(s): Judge: Terry Jane Ruderman KELEIK WATERS Claimant's attorney: Pro se HON. ERIC T. SCHNEIDERMAN Defendant's attorney: Attorney General for the State of New York By: Terrance K. DeRosa, Assistant Attorney General Third-party defendant's attorney: Signature date: September 20, 2013 City: White Plains Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
The following papers numbered 1-2 were read and considered by the Court on defendant's motion to dismiss:
Notice of Motion, Attorney's Supporting Affirmation and Exhibits.......................1
Claimant's Response................................................................................................2
Defendant moves to dismiss Claim No. 122669 for lack of jurisdiction based upon claimant's failure to serve a copy of the claim upon defendant as required by Court of Claims Act §11(a)(i).
In support of the motion, defendant submits an affidavit of Min C. Rhee, a clerk in the Claims Bureau of the Office of the Attorney General which stated that, upon a thorough search of the computer filing system in the Attorney General's Office, there is no record that this claim was ever served upon the Attorney General's Office (Ex. A).
Court of Claims Act §11 mandates that any party seeking to commence an action against the State must file the claim with the Clerk of the Court and serve a copy of the claim upon the Attorney General. The Court of Appeals has held that these statutory requirements must be strictly construed and that both filing and service must occur within the applicable limitations period as a pre-condition of a suit against the State (see Dreger v New York State Thruway Auth., 81 NY2d 721, 724 [1992]). Where claimant has failed to meet the statutory prerequisites, the claim must be dismissed for lack of subject matter jurisdiction (see Kolnacki v State of New York, 8 NY3d 277, 281 [2007] ["(t)he failure to satisfy any of the (statutory) conditions is a jurisdictional defect"]; Finnerty v New York State Thruway Auth., 75 NY2d 721, 723 [1989]; Rodriguez v State of New York, 307 AD2d 657 [3d Dept 2003]; Welch v State of New York, 286 AD2d 496, 497-498 [2d Dept 2001]).
Accordingly, defendant's motion is GRANTED and Claim No. 122669 is hereby dismissed.
September 20, 2013
White Plains, New York
Terry Jane Ruderman
Judge of the Court of Claims