Opinion
# 2017-045-007 Claim No. 128207 Motion No. M-89239
04-07-2017
EVELYN PEREZ, as the Intended Administratrix of the Estate of TOMMY BISBAL, Deceased v. The County of Suffolk and The Suffolk County Sheriff's Office/Riverhead Department of Corrections
Evelyn Perez, Pro Se By: No Appearance Hon. Eric T. Schneiderman, Attorney General By: Kimberly A. Kinirons, Assistant Attorney General
Synopsis
Defendant's motion to dismiss regarding lack of service, also claim is against Suffolk County.
Case information
| UID: | 2017-045-007 |
| Claimant(s): | EVELYN PEREZ, as the Intended Administratrix of the Estate of TOMMY BISBAL, Deceased |
| Claimant short name: | Perez |
| Footnote (claimant name) : | |
| Defendant(s): | The County of Suffolk and The Suffolk County Sheriff's Office/Riverhead Department of Corrections |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 128207 |
| Motion number(s): | M-89239 |
| Cross-motion number(s): | |
| Judge: | GINA M. LOPEZ-SUMMA |
| Claimant's attorney: | Evelyn Perez, Pro Se 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: | April 7, 2017 |
| 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 Notice of Motion, Defendant's Affirmation in Support with annexed Exhibits A-C.
Defendant has brought this motion pursuant to Civil Practice Law and Rules (CPLR) 3211 (a) (2) and (8) and Court of Claims Act (CCA) §§ 8, 9, 10 and 11, seeking an order dismissing the claim. Claimant has not opposed this motion.
On a motion to dismiss pursuant to CPLR 3211, the court is required to "accept the facts as alleged in the [claim] as true, accord [claimant] the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory" (Leon v Martinez, 84 NY2d 83, 87-88 [1994]). The review entails "whether the proponent of the pleading has a cause of action, not whether he has stated one" (id. at 88).
The underlying claim in this matter contains allegations of wrongdoing against the County of Suffolk and the Suffolk County Sheriff's Office/Riverhead Department of Corrections which occurred while claimant was an inmate at the Riverhead County Jail/Suffolk County Correctional Facility.
The Court of Claims is a court of limited jurisdiction wherein actions are primarily brought seeking monetary damages against the State of New York (see CCA § 9). Thus, this Court does not have jurisdiction over claims brought against non-State entities such as the County of Suffolk and the Suffolk County Sheriff's Office/Riverhead Department of Corrections (see generally Ross v County of Suffolk, 84 AD3d 775 [2d Dept 2011]; Williams v Suffolk County Sheriff"s Dept., 88 AD3d 694 [2d Dept 2011]). Accordingly, the State of New York is not a proper defendant in this matter and the Court of Claims does not have subject matter jurisdiction over the claim. As a result, defendant's motion to dismiss must be granted.
Additionally, defendant states that it was never served with the claim in this matter. In support defendant has proffered 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. Claimant has failed to dispute this point.
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]). Claimant has failed to put forth evidence showing that the claim was served upon the Attorney General's Office in accordance with the requirements of CCA §§ 10 and 11. Consequently, this Court has no jurisdiction over the action and must also dismiss the claim on this ground.
Therefore, for the foregoing reasons, defendant's motion to dismiss the claim is granted.
April 7, 2017
Hauppauge, New York
GINA M. LOPEZ-SUMMA
Judge of the Court of Claims