Opinion
# 2021-053-521 Claim No. 135158 Motion No. M-96334
04-08-2021
ANGEL RIVERA v. ERIE COUNTY
ANGEL RIVERA, Pro Se HON. LETITA JAMES New York State Attorney General BY: Carlton K. Brownell, III, Esq.
Synopsis
In response to the Order to Show Cause of the Court that the parties submit statements regarding the service of this pro se claim, the State established that the claim was never served on the Attorney General and the claim was dismissed.
Case information
| UID: | 2021-053-521 |
| Claimant(s): | ANGEL RIVERA |
| Claimant short name: | |
| Footnote (claimant name) : | |
| Defendant(s): | ERIE COUNTY |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 135158 |
| Motion number(s): | M-96334 |
| Cross-motion number(s): | |
| Judge: | J. DAVID SAMPSON |
| Claimant's attorney: | ANGEL RIVERA, Pro Se |
| Defendant's attorney: | HON. LETITA JAMES New York State Attorney General BY: Carlton K. Brownell, III, Esq. |
| Third-party defendant's attorney: | |
| Signature date: | April 8, 2021 |
| City: | Buffalo |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
By Order to Show Cause (OTSC) filed January 8, 2021, this Court ordered the parties to submit statements regarding the service of claim no. 135158 on the Office of the New York State Attorney General (OAG) in compliance with Court of Claims Act §§ 10 and 11. Claimant failed to respond to the Court's OTSC.
In order to commence an action against the State of New York in the Court of Claims, a claim must be filed and a copy served upon the OAG personally or br certified mail, return receipt requested (Court of Claims Act §§ 10 [3] and 11 [a] [i]). The filing and service requirements of the Court of Claims Act are jurisdictional in nature and must be strictly construed (Dreger v New York v New York State Thruway Auth., 81 NY2d 721 [1992]). The failure to comply with these requirements deprives the Court of jurisdiction, requiring dismissal of the claim (Finnerty v New York State Thruway Auth., 75 NY2d 721 [1989]; Ivy v State of New York, 27 AD3d 1190 [4th Dept 2006]). Defendant argues that a claim was never served upon the Attorney General.
In response to the Court's Order to Show Cause, Assistant Attorney General Carlton K. Brownell, III submitted the affidavit of Debra L. Mantell (Defendant's Exhibit A), a Legal Assistant II in the Albany, New York Office of the OAG. According to Ms. Mantell, a search of OAG's digital case management system was conducted after receiving a letter from the Court advising that a claim had been filed on August 4, 2020. This search found no record that this claim had been served upon the Attorney General. In January of 2021, OAG conducted a second search of its digital case management system which, once again, failed to disclose any record to show that OAG had received a notice of intention to file a claim and/or a claim from Angel Rivera. As a result, claim no. 135158 is jurisdictionally defective and must be dismissed as no claim was served upon the OAG (Ivy, supra at 1191).
Claimant failed to respond to the Court's OTSC. Attached to the claim as filed, however, is an affidavit of service which indicates service of the claim upon Erie County, together with copies of the U.S. Postal Service's green return receipt cards indicating service addressed to the Chief Clerk of Erie County. The Court of Claims is a court of limited jurisdiction with the power to hear claims against the State of New York for the torts of its officers and employees (NY Const Art IV; Court of Claims Act §9). The Court of Claims has no jurisdiction over Erie County or the actions of Erie County employees, as they are not New York State employees for whose actions the State is liable (see Whitmore v State of New York, 55 AD2d 745 [3d Dept 1976], lv denied 42 NY2d 810 [1977]; Concepcion v State of New York, UID No. 2019-040-040 [Ct Cl, McCarthy, J., June 12, 2019]; Matteson v State of New York, UID No. 2017-040-085 [Ct Cl, McCarthy, J., July 7, 2017]; Lyons v State of New York, UID No. 2004-030-904 [Ct Cl, Scuccimarra, J., Feb. 18, 2004]).
As the claim was never served upon the OAG and as this Court has no jurisdiction over the named defendant, Erie County, claim no. 135158 is dismissed.
April 8, 2021
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 filed January 8, 2021; and 2. Affidavit in response to the Order to Show Cause of Assistant Attorney General Carlton K. Brownell, III sworn to February 24, 2021, with annexed Exhibit A.