Opinion
# 2014-050-048 Claim No. 122959 Motion No. M-85364 Cross-Motion No. CM-85456
10-02-2014
JULIO C. BORRELL v. THE STATE OF NEW YORK
Julio C. Borrell, Pro Se Hon. Eric T. Schneiderman, NYS Attorney General By: Gregory P. Miller, Assistant Attorney General
Synopsis
The claimant moves for summary judgment and appointment of counsel. Defendant cross moves for summary judgment. Claimant's motion is denied because this action is not one of the limited kinds of cases where the claimant might be able to obtain appointment of counsel. Defendant's motion is granted based on its seventh and eighth affirmative defenses and the claim is dismissed.
Case information
| UID: | 2014-050-048 |
| Claimant(s): | JULIO C. BORRELL |
| Claimant short name: | BORRELL |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 122959 |
| Motion number(s): | M-85364 |
| Cross-motion number(s): | CM-85456 |
| Judge: | STEPHEN J. LYNCH |
| Claimant's attorney: | Julio C. Borrell, Pro Se |
| Defendant's attorney: | Hon. Eric T. Schneiderman, NYS Attorney General By: Gregory P. Miller, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | October 2, 2014 |
| City: | Hauppauge |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
The claimant moves for summary judgment and appointment of counsel. The defendant cross-moves for summary judgment. As to summary judgment, the claimant's motion is not supported by copies of the pleading as expressly required by the governing statute, CPLR 3212 (b), and is therefore denied. Claimant did not discharge his initial burden of proof which is to demonstrate his entitlement to judgment as a matter of law.
The defendant upon its cross motion has included copies of the pleadings and other documentary proof. Defendant has demonstrated through the proof it has adduced that both the notice of intention to file a claim and the claim were not served by certified mail, return receipt requested, but rather, by ordinary mail; such form of service is inadequate under Court of Claims Act (CCA) § 11 (a) (i) which expressly requires service "personally or by certified mail, return receipt requested" upon the Attorney General. The seventh and eighth affirmative defenses set forth in the defendant's answer dated July 31, 2013 preserved this jurisdictional defense. It is well settled that the service requirements of CCA § 11 (a) are to be strictly construed and are jurisdictional objections (see Hodge v State of New York, 213 AD2d 766 [3d Dept 1995]; Bogel v State of New York, 175 AD2d 493 [3d Dept 1991]; Govan v State of New York, 301 AD2d 757 [3d Dept 2003]; Turley v State of New York, 279 AD2d 819 [3d Dept 2001]). Therefore, the branch of the defendant's cross motion seeking summary judgment based on its seventh and eighth affirmative defenses (respectively, "[t]he Court lacks personal jurisdiction over the Defendant, the State of New York, and subject matter jurisdiction of the claim as the Notice of Intention was not served in compliance with §11 of the Court of Claims Act in that the Notice of Intention was delivered by ordinary mail instead of served personally or by certified mail, return receipt requested" and "[t]he Court lacks personal jurisdiction over the Defendant, the State of New York, and subject matter jurisdiction [over] the Claim, as the [C]laim was not served in compliance with § 11(a) of the Court of Claims Act in that the claim was delivered by ordinary mail, instead of served personally or by certified mail, return receipt requested ") is granted and the claim is dismissed. The remainder of defendant's motion for summary judgment upon alternate grounds is denied as academic.
This action for damages arising from an attack on claimant from another inmate is not one of the limited kinds of cases where the claimant might be able to obtain the appointment of counsel. Therefore, the request by claimant for appointment of an attorney to represent him in this action is denied (see Matter of Smiley, 36 NY2d 433; Russo v State of New York, 50 AD3d 1554 [4th Dept 2008]; Rosario v State of New York, 10 Misc 3d 960 [Ct Cl 2005] citing Ferguson v State of New York [Ct Cl, Claim No. 109479 - Motion No. M-68699, Dec. 3, 2004, Hudson J.]).
October 2, 2014
Hauppauge, New York
STEPHEN J. LYNCH
Judge of the Court of Claims
The following papers were read and considered by the Court on the claimant's motion for summary judgment and the defendant's cross motion for summary judgment:
1. Claimant's Notice of Motion and "Sworn Affirmation in Support," dated July 6, 2014.
2. Defendant's Notice of Cross Motion, and Affirmation with Exhibits A through D.