Opinion
# 2016-041-024 Claim No. 121658 Motion No. M-88181
05-02-2016
HECTOR SIERRRA-GARCIA and HECTOR SIERRA-PAGAN (SIR) v. THE STATE OF NEW YORK
HECTOR SIERRA-GARCIA Pro Se HON. ERIC T. SCHNEIDERMAN New York State Attorney General By: Paul F. Cagino, Esq. Assistant Attorney General
Synopsis
Defendant's motion to dismiss claim as jurisdictionally defective due to claim not having been served on the Attorney General is granted.
Case information
| UID: | 2016-041-024 |
| Claimant(s): | HECTOR SIERRRA-GARCIA and HECTOR SIERRA-PAGAN (SIR) |
| Claimant short name: | SIERRA-GARCIA |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | The caption is amended to state the proper defendant. |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 121658 |
| Motion number(s): | M-88181 |
| Cross-motion number(s): | |
| Judge: | FRANK P. MILANO |
| Claimant's attorney: | HECTOR SIERRA-GARCIA Pro Se |
| Defendant's attorney: | HON. ERIC T. SCHNEIDERMAN New York State Attorney General By: Paul F. Cagino, Esq. Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | May 2, 2016 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Defendant moves to dismiss this bailment claim for lack of jurisdiction because the claim (filed with the Clerk of the Court of Claims on August 22, 2012) was never served on the Attorney General. Claimants oppose the defendant's motion to dismiss the claim.
Defendant provides an affidavit of a Senior Clerk in the Office of the Attorney General stating that the Attorney General was never served with the claim.
Court of Claims Act section 10 requires that a claim to recover damages caused by the tortious conduct, whether intentional or unintentional, of an officer or employee of the state, be filed with the Clerk of the Court of Claims and served upon the Attorney General within ninety days after the accrual of the claim unless a notice of intention to file a claim is served within such ninety days, "in which event the claim shall be filed . . . within two years after the accrual of such claim."
Courts have consistently held that "[a]s a condition of the State's limited waiver of sovereign immunity, those requirements [timely filing and service] are strictly construed and a failure to comply therewith is a jurisdictional defect compelling the dismissal of the claim" (Welch v State of New York, 286 AD2d 496, 497-498 [2d Dept 2001]; see Robinson v State of New York, 38 AD3d 1030 [3d Dept 2007]; Pizarro v State of New York, 19 AD3d 891, 892 [3d Dept 2005], lv denied 5 NY3d 717 [2005]).
The affidavit in opposition of claimant Hector Sierra-Garcia states that he "served a Notice of intend and Claim to the Clerk Chief of the Court of Claims." Claimant Hector Sierra-Garcia does not state that he ever served a notice of intention to file a claim, or a claim, on the Attorney General.
The defendant's motion to dismiss is granted. The claim is dismissed.
May 2, 2016
Albany, New York
FRANK P. MILANO
Judge of the Court of Claims
Papers Considered:
1. Defendant's Notice of Motion to Dismiss, filed February 11, 2016; 2. Affirmation of Paul F. Cagino, dated February 11, 2016, and attached exhibit, the affidavit of Janet Barringer, sworn to February 10, 2016; 3. Affidavit of Hector Sierra-Garcia, sworn to February 21, 2016.