Opinion
# 2015-015-106 Claim No. 124405 Motion No. M-87281
12-16-2015
CARLOS ABREU v. THE STATE OF NEW YORK
Carlos Abreu, Pro Se Honorable Eric T. Schneiderman, Attorney General By: Paul F. Cagino, Esquire Assistant Attorney General
Synopsis
Inmate's motion for the appointment of counsel was denied and claim was dismissed, sua sponte, for lack of service.
Case information
| UID: | 2015-015-106 |
| Claimant(s): | CARLOS ABREU |
| Claimant short name: | ABREU |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 124405 |
| Motion number(s): | M-87281 |
| Cross-motion number(s): | |
| Judge: | FRANCIS T. COLLINS |
| Claimant's attorney: | Carlos Abreu, 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: | December 16, 2015 |
| City: | Saratoga Springs |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant, proceeding pro se, moves for the appointment of counsel.
On May 21, 2014, claimant filed the instant claim seeking damages arising from the administrative imposition of a five-year period of postrelease supervision and his subsequent confinement to prison for a parole violation.
In opposition to the claimant's motion, defendant contends that it was not served with the claim and, as a result, this Court lacks jurisdiction over the defendant. Defendant also points out that the Notice of Motion fails to comply with CPLR 2214 (a) in that it fails to "specify . . . the supporting papers upon which the motion is based, the relief demanded and the grounds therefor." Apparently misled as to the nature of the motion, defendant responded as though claimant sought to compel discovery, rather than the appointment of counsel. Notably, unlike the motion papers filed with the Clerk, the papers served on defense counsel (defendant's Exhibit A) include not only a motion for the appointment of counsel, but also a Notice for Discovery and Inspection.
In support of its contention that it was not served with a copy of the claim, defendant submitted an affidavit from Janet Barringer, Office Assistant 2, in the Office of the Attorney General. Ms. Barringer avers that she searched the paper and electronic files maintained by the Attorney General's office and found that although it received various documents relating to this claim, there was no record that it received a claim.
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]). Inasmuch as defendant established through the affidavit of Janet Barringer that no claim was served upon the Attorney General, the claim must be dismissed (Encarnacion v State of New York, 133 AD3d 1049 [3d Dept 2015]).
Accordingly, claimant's motion for the appointment of counsel is denied and the claim is dismissed.
December 16, 2015
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims The Court considered the following papers:
1. Notice of motion sworn to July 30, 2015;
2. Notice of motion dated July 30, 2015;
3. Affirmation of Carlos Abreu sworn to July 28, 2015;
4. Affirmation of Paul F. Cagino dated October 5, 2015 with exhibits.