Opinion
# 2021-015-016 Claim No. 132121 Motion No. M-96110
02-09-2021
FITZALBERT FULLER, JR. v. THE STATE OF NEW YORK
No Appearance Honorable Letitia James, Attorney General By: Glenn C. King, Esq., Assistant Attorney General
Synopsis
Claim was dismissed as claimant failed to show, in response to an order to show cause, that the claim was served.
Case information
| UID: | 2021-015-016 |
| Claimant(s): | FITZALBERT FULLER, JR. |
| Claimant short name: | FULLER |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 132121 |
| Motion number(s): | M-96110 |
| Cross-motion number(s): | |
| Judge: | FRANCIS T. COLLINS |
| Claimant's attorney: | No Appearance |
| Defendant's attorney: | Honorable Letitia James, Attorney General By: Glenn C. King, Esq., Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | February 9, 2021 |
| City: | Saratoga Springs |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
By Order to Show cause served by First Class mail on October 22, 2010, claimant was ordered to show cause why the claim should not be dismissed for lack of service as required by Court of Claims Act § 11 (a) (i).
Claimant, a former pro se inmate, filed a claim on October 11, 2018 seeking damages for various incidents that occurred in prison. There being no affidavit of service of the claim filed in the Office of the Clerk of the Court of Claims as required (22 NYCRR § 206.5), the Court served the instant Order to Show Cause. Claimant failed to respond to the Order and defendant submitted in response an attorney's affirmation and the affidavit of Debra L. Mantell, Legal Assistant II in the Albany Office of the Attorney General. Defense counsel indicates, based upon his personal review of the file maintained by the Office of the Attorney General, that there is no record of service of a claim in this matter. Ms. Mantell states in her affidavit that it is the usual business practice of the Attorney General's Office to record receipt of claims and notices of intention to file claims in its digital case-management system. According to Ms. Mantell, her search of the digital case-management system disclosed no record of the Attorney General having received a claim in this matter.
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 New York State, 71 AD3d 1355, 1355 [3d Dept 2010], lv denied 15 NY3d 703 [2010]; cf. Court of Claims Act § 11 [c] [ii]).
Claimant failed to oppose the motion, an affidavit of service of the claim was not filed and the affirmation of defense counsel and the affidavit of Ms. Mantell establish the claim was not served upon the Attorney General. Absent proof of service of the claim by one of the methods prescribed by Court of Claims Act § 11 (a) (i), dismissal is required. Accordingly, on the Court's own motion, the claim is dismissed.
February 9, 2021
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims Papers Considered:
1. Order to Show Cause dated October 22, 2020;
2. Defendant's affirmation dated November 30, 2020, with Exhibit A.