Opinion
# 2015-015-052 Claim No. 117486 Motion No. M-86054
05-07-2015
LEEODUS T. BROWN v. STATE OF NEW YORK
No Appearance Honorable Eric T. Schneiderman, Attorney General By: Paul F. Cagino, Esq. Assistant Attorney General
Synopsis
Claim was dismissed for lack of service, a non-waivable jurisdictional defect.
Case information
| UID: | 2015-015-052 |
| Claimant(s): | LEEODUS T. BROWN |
| Claimant short name: | BROWN |
| Footnote (claimant name) : | |
| Defendant(s): | STATE OF NEW YORK |
| Footnote (defendant name) : | The caption is amended sua sponte to reflect the only properly named defendant. |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 117486 |
| Motion number(s): | M-86054 |
| Cross-motion number(s): | |
| Judge: | FRANCIS T. COLLINS |
| Claimant's attorney: | No Appearance |
| Defendant's attorney: | Honorable Eric T. Schneiderman, Attorney General By: Paul F. Cagino, Esq. Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | May 7, 2015 |
| City: | Saratoga Springs |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Defendant moves to dismiss the claim pursuant to CPLR 3211 (a) (2) and (8) on the ground no claim was served upon the Attorney General as required by Court of Claims Act § 11 (a) (i). The instant claim, filed on October 5, 2009, seeks damages for misconduct that allegedly occurred in a criminal case in which the claimant was involved.
In support of its dismissal motion, defendant submitted 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 and paper files maintained by the Attorney General's office and found no record that this 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." 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 State of New York, 71 AD3d 1355, 1355 [3d Dept 2010], lv denied 15 NY3d 703 [2010]; cf. Court of Claims Act § 11 [c] [ii]). Defendant established in support of its motion that no claim was served upon the Attorney General and claimant has failed to oppose the motion.
Accordingly, the defendant's motion is granted and the claim is dismissed.
May 7, 2015
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims
Papers Considered:
Notice Of Motion To Dismiss dated December 17, 2014;
Affirmation In Support of Paul F. Cagino dated December 17, 2014 with exhibit A.