Opinion
# 2020-045-025 Claim No. 133284 Motion No. M-95089
05-12-2020
DAVID CARTER v. THE STATE OF NEW YORK
David Carter, Pro Se By: No Appearance
Synopsis
Pro Se motion to compel discovery.
Case information
| UID: | 2020-045-025 |
| Claimant(s): | DAVID CARTER |
| Claimant short name: | CARTER |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | The caption has been amended, sua sponte, to reflect the State of New York as the proper defendant. |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 133284 |
| Motion number(s): | M-95089 |
| Cross-motion number(s): | |
| Judge: | GINA M. LOPEZ-SUMMA |
| Claimant's attorney: | David Carter, Pro Se |
| Defendant's attorney: | By: No Appearance |
| Third-party defendant's attorney: | |
| Signature date: | May 12, 2020 |
| City: | Hauppauge |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
The following papers were read and considered by the Court on this motion: Claimant's Notice of Motion; Claimant's correspondence dated January 24, 2020 and the filed Claim. Defendant, the State of New York did not oppose the motion.
Pursuant to CPLR 2214 (b), motion papers are to be served upon the opposing party. Attached to claimant's motion papers is an affidavit of service that is not sworn or notarized. According to this affidavit of service, a copy of the motion papers was sent to Assistant Attorney General Bruce Feldman at the New York State Court of Claims, Empire State Plaza, PO Box 7344, Albany, New York. The Court notes that this address is to the New York State Court of Claims Clerk's Office and is the same mailing address used by claimant for the filing of this motion.
By his own admission, claimant failed to serve defendant's counsel with the motion papers. Claimant's failure to serve a copy of the motion papers upon defendant deprives the Court of jurisdiction to entertain the motion (Nationstar Mtge., LLC v Chase, 147 AD3d 964 [2d Dept 2017]; Welch v State of New York, 261 AD2d 537 [2d Dept 1999]). Absence of proper service of a motion is a sufficient and complete excuse for a default on a motion and deprives the court of jurisdiction to entertain the motion (Bianco v LiGreci, 298 AD2d 482 [2d Dept 2002]).
Therefore, for the foregoing reasons, claimant's motion is denied.
May 12, 2020
Hauppauge, New York
GINA M. LOPEZ-SUMMA
Judge of the Court of Claims