Opinion
# 2012-049-068 Claim No. 120092 Motion No. M-82126
12-21-2012
NA-AISHA RILEY and TOINETTE KNIGHT v. ADMINISTRATION for CHILDREN SERVICES, CARDINAL MCCLOSKEY SERVICES
Synopsis
On the Court's own motion, the claim is dismissed. Court lacks subject matter jurisdiction over claim. Case information
UID: 2012-049-068 Claimant(s): NA-AISHA RILEYand TOINETTE KNIGHT Claimant short name: RILEY Footnote (claimant name) : Defendant(s): ADMINISTRATION for CHILDREN SERVICES, CARDINAL MCCLOSKEY SERVICES Footnote (defendant name) : Third-party claimant(s): Third-party defendant(s): Claim number(s): 120092 Motion number(s): M-82126 Cross-motion number(s): Judge: David A. Weinstein Na-Aisha Riley, Pro Se Claimant's attorney: By: No Appearance Eric T. Schneiderman, NYS Attorney General Defendant's attorney: By: Edward J. Curtis, Assistant Attorney General Third-party defendant's attorney: Signature date: December 21, 2012 City: Albany Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
In an Order to Show Cause (the "Order") filed September 6, 2012, the Court noted that no answer had been filed in this claim, although the claim had been filed on July 13, 2011. The Order therefore directed claimants to show cause why this claim should not be dismissed for failure to comply with the service requirements of Court of Claims Act § 11 (a), and further directed the Attorney General to submit an affidavit from someone with personal knowledge of the contents of the files and records of the Department of Law regarding whether the Attorney General had been served. The Court's records reflect that claimant filed an affidavit of service indicating that a notice of motion and supporting papers were sent by mail with no addressee listed. The document does not indicate that a claim was served in a method authorized by statute.
Claimants have failed to respond to the Order. The Attorney General has submitted the affidavit of Tasha Hunter-Tabron, a clerk in the Attorney General's Claims Bureau, and the affirmation of Assistant Attorney General Edward J. Curtis, Jr. The former states that Ms. Hunter-Tabron conducted a "thorough search" of the Attorney General's computer filing system, and found no record of this claim being served.The latter states that, in the absence of any evidence of service, the claim should be dismissed.
Ms. Hunter Tabron's affidavit actually states that no "Order to Show Cause" was served upon the Attorney General in this action (Hunter-Tabron Aff. ¶ 4). It is clear from the context, however, that this is an error, and the reference is to service of the claim. That is because (1) Mr. Curtis' affirmation characterizes Ms. Hunter-Tabron's affidavit as stating that no claim was served (Curtis Aff. ¶ 3); (2) Ms. Hunter-Tabron's affidavit specifically discusses her office's records in regard to service of claims and notices of intention (Hunter-Tabron Aff. ¶ 2); and (3) as written, the statement makes no sense, since it is service of the claim that is at issue, and in any case defendant clearly was served with the Order, since its submission references the Order (Curtis Aff. ¶ 2), and responds thereto.
Then, by letter dated November 9, 2012, defendant informed the Court that during the pendency of this motion the Attorney General received the claim at issue by regular mail. Defendant takes the position that its time to respond to the claim is extended by CPLR 3211 (f) and 22 NYCRR 206.7, which provide for such an extension in certain circumstances.
Because defendant has now been served - albeit, in what appears to be an untimely and impermissible fashion - it must raise any objection to improper service or that the action is untimely by a pre-answer motion or in its answer (Court of Claims Act § 11 [c]), which it has yet to do. Be that as it may, in light of the record before me, dismissal of this claim for lack of subject matter jurisdiction is appropriate in any case.
The jurisdiction of the Court of Claims is limited to claims against the State of New York where the State is the real party in interest, and to "a few other state-related entities as provided by statute" (Erie Blvd. Hydropower, LP v State of New York, 90 AD3d 1292, 1293 [3d Dept 2011]). Such jurisdiction does not extend to the named defendants in this matter - a non-profit entity and an agency of New York City.
Subject matter jurisdiction is nonwaivable and may be considered sua sponte (see Erie Blvd. Hydropower, LP, 90 AD3d at 1293; Hoffman v State of New York, UID No. 2006-015-078 [Ct Cl, Collins, J., Mar. 29, 2006]; affd Hoffman v State of New York, 42 AD3d 641 [3d Dept 2007]); see also Matter of Fry v Village of Tarrytown, 89 NY2d 714, 718 [1997] ["a court's lack of subject matter jurisdiction is not waivable, but 'may be [raised] at any stage of the action, and the court may, ex mero motu [on its own motion], at any time, when its attention is called to the facts, refuse to proceed further and dismiss the action"] [internal quotation marks and citations omitted]). As the Court lacks subject matter jurisdiction to hear and decide this claim, it must be dismissed.
Accordingly, it is
ORDERED that claim no. 120092 be dismissed.
December 21, 2012
Albany, New York
David A. Weinstein
Judge of the Court of Claims
Papers Considered
1. Defendant's Affirmation and annexed exhibit.
2. Defendant's letter, November 9, 2012.