Opinion
# 2017-053-549 Claim No. 127778 Motion No. M-89916 Motion No. M-90224
09-14-2017
XAVIER JIMENEZ v. STATE OF NEW YORK DISTRICT ATTORNEY NEW YORK CITY POLICE DEPARTMENT
XAVIER JIMENEZ, Pro Se HON. ERIC T. SCHNEIDERMAN New York State Attorney General BY: Joseph L. Paterno, Esq. Assistant Attorney General
Synopsis
In response to the Court's Order to Show Cause that the parties submit statements regarding the service of this pro se claim on the defendant in compliance with Court of Claims Act Section 11, claimant's request that the Court remove the action to Supreme Court is denied and defendant's motion to dismiss claim for lack of jurisdiction is granted and the claim is dismissed.
Case information
| UID: | 2017-053-549 |
| Claimant(s): | XAVIER JIMENEZ |
| Claimant short name: | JIMENEZ |
| Footnote (claimant name) : | |
| Defendant(s): | STATE OF NEW YORK DISTRICT ATTORNEY NEW YORK CITY POLICE DEPARTMENT |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 127778 |
| Motion number(s): | M-89916, M-90224 |
| Cross-motion number(s): | |
| Judge: | J. DAVID SAMPSON |
| Claimant's attorney: | XAVIER JIMENEZ, Pro Se |
| Defendant's attorney: | HON. ERIC T. SCHNEIDERMAN New York State Attorney General BY: Joseph L. Paterno, Esq. Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | September 14, 2017 |
| City: | Buffalo |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
On April 11, 2016, pro se claimant Xavier Jimenez filed a claim with the Court of Claims alleging that he was falsely arrested on November 28, 2015 by the New York City Police Department and detained by order of a judge of the New York State Court system and thereafter erroneously prosecuted by the District Attorney for the County of New York and incarcerated in a Manhattan detention complex. Claimant alleges that the claim accrued on February 10, 2016. No answer to the claim was ever filed, thereby raising the issue of whether there was appropriate service of the claim upon the Attorney General as required by the Court of Claims Act. By Order To Show Cause filed February 16, 2017, this Court ordered the parties to submit statements regarding the service of claim no. 127778 on the defendant in compliance with Court of Claims Act § 11.
In response to the Court's Order to Show Cause, on March 7, 2017, claimant served a copy of this claim upon the Office of the Attorney General by certified mail, return receipt requested. On March 13, 2017, Assistant Attorney General Joseph L. Paterno (AAG Paterno) filed an affirmation in response seeking to dismiss the claim. On April 7, 2017, claimant filed his response to the Court's Order to Show Cause, which included a "Notice of Motion to Remove Action from the New York State Court of Claims to New York Supreme Court, County of Manhattan, New York." On April 10, 2017, AAG Paterno filed a notice of motion and affirmation, M-90224, seeking to dismiss the claim served on the Office of the Attorney General on March 7, 2017, pursuant to CPLR Rules 3211 and 3212.
In order to commence an action in the Court of Claims, a claim must be filed and a copy served upon the Attorney General. Section 11 (a) (i) of the Court of Claims Act provides that a claim must be served upon the Attorney General by personal service or by certified mail, return receipt requested. The service requirements of the Court of Claims Act are jurisdictional in nature and must be strictly construed (Dreger v New York State Thruway Auth., 81 NY2d 721 [1992]). The failure to comply with the service requirements of the Court of Claims Act deprives the court of subject matter jurisdiction, requiring dismissal of the claim (Finnerty v New York State Thruway Auth., 75 NY2d 721 [1989]; Byrne v State of New York, 104 AD2d 782 [2d Dept 1984], lv denied 64 NY2d 607 [1985]). Pursuant to Court of Claims Act § 10 (3-b) and 11 (a) (i), a claim to recover damages for personal injuries caused by the intentional tort of an officer or employee of the State of New York shall be filed and a copy served upon the Attorney General personally or by certified mail, return receipt requested, within ninety (90) days of accrual of the claim. The requirements of sections 10 and 11 of the Court of Claims Act are jurisdictional in nature and must be strictly construed (Finnerty, supra.). The failure to serve a copy of the claim upon the Attorney General deprives this court of jurisdiction requiring dismissal of the claim (Torres v State of New York, 107 AD3d 1471 [4th Dept 2013]; Ivy v State of New York, 27 AD3d 1190 [4th Dept 2006]).
The affirmation of AAG Paterno dated March 7, 2017, states that Min Chul Rhee, a Clerk/Legal Assistant Trainee 2 in the Claims Bureau conducted an investigation which revealed that neither a notice of intention nor the claim was ever served upon the Office of the Attorney General. Mr. Rhee's affidavit states that he conducted a thorough search of the computer filing system and no evidence indicates that claim no. 127778 was ever served on the Office of the Attorney General. The affirmation dated April 6, 2017 by AAG Paterno in support of the defendant's motion to dismiss, M-90224, states that the claim was not served on the Office of the Attorney General until March 7, 2017, almost 13 months after the accrual of the claim. Accordingly, this Court lacks jurisdiction as the claimant failed to serve the Office of the Attorney General in accordance with the requirements of sections 10 and 11 of the Court of Claims Act.
With respect to claimant's motion to remove the action from the Court of Claims to Supreme Court, New York County, Section 9 of the Court of Claims Act sets forth the jurisdiction and powers of the court, which as applies to the instant claim limits the court's jurisdiction to claims against the state for the torts of its officers or employees while acting as such officers or employees. The Court of Claims does not have jurisdiction over actions against a municipality such as New York City, including the New York City District Attorney and the New York City Police Department (Whitmore v State of New York, 55 AD2d 745 [3d Dept 1976], lv denied 42 NY2d 810 [1977]. The power of the Court of Claims is thus limited and it has been held that "the Court of Claims does not have the power to transfer any case, much less a case over which it has no jurisdiction, to Supreme Court" (Bertolino v State of New York, UID 2006-028-509, [Ct Cl, Sise, J., Jan. 12, 2006], citing to NY State Constitution, Article VI, §19; CPLR 325; Maric Mechanical v State of New York, 145 Misc 2d 287 [Ct Cl 1989]).
Accordingly, it is hereby
ORDERED, that with respect to the Order to Show Cause, M-89916, the claimant's request to remove the action to Supreme Court is denied as this court does not have the power to transfer the case to Supreme Court, New York County. Further, claimant's failure to comply with the service requirements of the Court of Claims Act deprives this court of jurisdiction, requiring dismissal of the claim; and it is hereby
ORDERED, that defendant's motion to dismiss, M-90224, is granted as no notice of intention was ever served and the claim that was served on March 7, 2017 was not served within the 90 day statutory period required by the Court of Claims Act. As a result, claim no. 127778 is dismissed.
September 14, 2017
Buffalo, New York
J. DAVID SAMPSON
Judge of the Court of Claims The following were read and considered by the Court: 1. Order to Show Cause dated February 7, 2017; 2. Affirmation of Assistant Attorney General Joseph L. Paterno, Esq., dated March 7, 2017 with annexed Exhibit A; and 3. Claimant's response to Order to Show Cause dated March 31, 2017; and 4. Affirmation in opposition of Assistant Attorney General Joseph L. Paterno, Esq., dated April 13, 2017; and 5. Notice of motion dated April 6, 2017, with affirmation in support of Joseph L. Paterno, Esq. .