Opinion
# 2016-045-039 Claim No. 120390 Motion No. M-88485
09-12-2016
JOHNNY GOMEZ and NOELIA GOMEZ v. THE STATE OF NEW YORK
Robert G. Goodman, PC By: No Appearance Hon. Eric T. Schneiderman, Attorney General By: Kimberly A. Kinirons, Assistant Attorney General
Synopsis
Follow-up order dismissing claim after order to show cause regarding lack of service.
Case information
| UID: | 2016-045-039 |
| Claimant(s): | JOHNNY GOMEZ and NOELIA GOMEZ |
| Claimant short name: | GOMEZ |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 120390 |
| Motion number(s): | M-88485 |
| Cross-motion number(s): | |
| Judge: | GINA M. LOPEZ-SUMMA |
| Claimant's attorney: | Robert G. Goodman, PC By: No Appearance |
| Defendant's attorney: | Hon. Eric T. Schneiderman, Attorney General By: Kimberly A. Kinirons, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | September 12, 2016 |
| 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: Defendant's Affirmation in Support with annexed Exhibit A and the filed Claim.
By an Order to Show Cause dated April 25, 2016, this Court directed claimants to submit proof that the claim in this matter had been served on defendant, the State of New York, in compliance with Court of Claims Act § 11.
The underlying claim in this case concerns a motorcycle accident due to an allegedly defective condition on the roadway on the southbound lanes of the Cross Island Parkway in the vicinity of exit ramp 27W.
CCA § 11 (a) (i) states that:
"[t]he claim shall be filed with the clerk of the court; and, except in the case of a claim for the appropriation by the state of lands, a copy 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. Any notice of intention shall be served personally or by certified mail, return receipt requested, upon the attorney general within the times hereinbefore provided for service upon the attorney general. Service by certified mail, return receipt requested, upon the attorney general shall not be complete until the claim or notice of intention is received in the office of the attorney general. Personal service upon the attorney general shall be made in the same manner as described in section three hundred seven of the civil practice law and rules."
The Court of Appeals has long held that "[b]ecause suits against the State are allowed only by the State's waiver of sovereign immunity and in derogation of the common law, statutory requirements conditioning suit must be strictly construed"(Dreger v New York State Thruway Authority, 81 NY2d 721, 724 [1992]). "[A]ccordingly, claimants who had not met the literal requirements of Court of Claims Act §11 had not properly commenced their actions" (Lichtenstein v State of New York, 93 NY2d 911, 913 [1999]). Claimants have failed to put forth evidence showing that the claim was served upon the Attorney General's Office in accordance with the requirements of CCA § 11 (a) (i). Consequently, this Court has no jurisdiction over the action and must dismiss the claim.
Additionally, defendant has provided the Affidavit of Cynthia Watson, Clerk in the Claims Bureau of the New York City Office of the Attorney General of the State of New York. Ms. Watson outlined her duties at the Attorney General's Office which included a familiarity with the record keeping system of the Claims Bureau. After a review of the office's records, Ms. Watson was unable to locate any records establishing that the Office of the Attorney General was served with the claim in this matter.
Therefore, for the foregoing reasons, the claim is dismissed.
September 12, 2016
Hauppauge, New York
GINA M. LOPEZ-SUMMA
Judge of the Court of Claims