Opinion
# 2016-045-042 Claim No. 127970 Motion No. M-88798 Cross-Motion No. CM-88862
09-16-2016
ERWIN JACKSON v. THE STATE OF NEW YORK
Erwin Jackson, Pro Se No Appearance Hon. Eric T. Schneiderman, Attorney General By: Lori L. Pack, Assistant Attorney General
Synopsis
Defendant's motion to dismiss claim.
Case information
| UID: | 2016-045-042 |
| Claimant(s): | ERWIN JACKSON |
| Claimant short name: | JACKSON |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 127970 |
| Motion number(s): | M-88798 |
| Cross-motion number(s): | CM-88862 |
| Judge: | GINA M. LOPEZ-SUMMA |
| Claimant's attorney: | Erwin Jackson, Pro Se No Appearance |
| Defendant's attorney: | Hon. Eric T. Schneiderman, Attorney General By: Lori L. Pack, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | September 16, 2016 |
| City: | Hauppauge |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
The following papers were read and considered by the Court on these motions: Defendant's Notice of Motion, Defendant's Affidavit, Defendant's Affirmation in Support with annexed Exhibits A-D, Claimant's Cross-Motion, Claimant's Affirmation with annexed Exhibit A, Defendant's Affirmation in Opposition and the filed Claim.
Defendant, the State of New York, has brought this motion pursuant to CPLR 3211 (7) seeking an order granting dismissal of the claim for failure to state a cause of action. In response, claimant, Erwin Jackson, has filed a cross-motion seeking an order "dismissing" defendant's motion and an order granting claimant "judgment upon the pleadings."
The underlying claim in this matter is based on the alleged failure of the Nassau County Court Clerk's Office to serve and file an application on claimant's behalf which sought a certificate granting leave to appeal a court order to the Appellate Division, Second Department.
In support of its motion to dismiss, defendant has submitted, inter alia, the Affidavit of Donald F. Vetter, Chief Clerk of the Nassau County Court, who affirmed that claimant's application was filed by his office on behalf of claimant on May 25, 2016.
A review of the Appellate Division, Second Department public website confirms that claimant's application was filed and that on September 14, 2016 a determination was rendered based on the papers filed (see Boereau v Scott, 140 AD3d 687 [2d Dept 2016]).
Thus, it is readily apparent that a claim cannot be put forth in this matter.
Therefore, for the foregoing reasons, defendant's motion is granted and the claim is hereby dismissed. Additionally, claimant's cross-motion is denied.
September 16, 2016
Hauppauge, New York
GINA M. LOPEZ-SUMMA
Judge of the Court of Claims