Opinion
# 2015-015-053 Claim No. 115865 Motion No. M-85980
05-07-2015
CALLOWAY v. STATE OF NEW YORK
Martin Calloway, Pro Se Honorable Eric T. Schneiderman, Attorney General By: Anthony Rotondi, Esquire Assistant Attorney General
Synopsis
Claim was dismissed for lack of service, a non-waivable jurisdictional defect.
Case information
| UID: | 2015-015-053 |
| Claimant(s): | MARTIN CALLOWAY |
| Claimant short name: | CALLOWAY |
| Footnote (claimant name) : | |
| Defendant(s): | STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 115865 |
| Motion number(s): | M-85980 |
| Cross-motion number(s): | |
| Judge: | FRANCIS T. COLLINS |
| Claimant's attorney: | Martin Calloway, Pro Se |
| Defendant's attorney: | Honorable Eric T. Schneiderman, Attorney General By: Anthony Rotondi, Esquire 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 instant claim pursuant to CPLR 3211 (a) (2) and (8) on the ground the claim was not served upon the Attorney General as required by Court of Claims Act § 11 (a) (i).
Claimant, an inmate proceeding pro se, filed the claim on September 22, 2008, seeking damages for the use of excessive force by correction officers.
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 maintained by the Attorney General's Office and found no record that the instant 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." 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]).
Defendant established through the affidavit of Janet Barringer that no claim was served upon the Attorney General. In opposition to the motion claimant submitted, inter alia, an affidavit of service of a notice of intention to file a claim which contained an incomplete address for the Attorney General. Inasmuch as claimant failed to oppose the motion with proof that the claim (not a notice of intention to file a claim) was served on the Attorney General utilizing one of the methods prescribed by Court of Claims Act § 11 (a) (i), the claim must be dismissed.
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:
1. Notice Of Motion To Dismiss dated November 21, 2014;
2. Affirmation In Support Of Motion To Dismiss dated November 21, 2014 with exhibit A.
3. Affidavit in opposition of Martin Calloway sworn to February 26, 2015, with attachments.