Opinion
# 2018-038-572 Claim No. 120895 Motion No. M-92038
08-01-2018
ANTHONY STALLINGS 02-A-2329 v. STATE OF NEW YORK
ANTHONY STALLINGS, Pro se BARBARA D. UNDERWOOD, Attorney General of the State of New York By: Paul F. Cagino, Assistant Attorney General
Synopsis
Defendant's motion to dismiss claim on jurisdictional grounds for lack of service on Attorney General granted.
Case information
| UID: | 2018-038-572 |
| Claimant(s): | ANTHONY STALLINGS 02-A-2329 |
| Claimant short name: | STALLINGS |
| Footnote (claimant name) : | |
| Defendant(s): | |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 120895 |
| Motion number(s): | M-92038 |
| Cross-motion number(s): | |
| Judge: | W. BROOKS DeBOW |
| Claimant's attorney: | ANTHONY STALLINGS, Pro se |
| Defendant's attorney: | BARBARA D. UNDERWOOD, Attorney General of the State of New York By: Paul F. Cagino, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | August 1, 2018 |
| City: | Saratoga Springs |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
The caption of the claim has been amended sua sponte to reflect the State of New York as the only proper defendant on this claim. --------
Decision
Claimant, an individual incarcerated in a State correctional facility, has filed this claim seeking compensation for personal property that was allegedly damaged or lost at Upstate Correctional Facility. After the parties received notification that the claim was scheduled for trial on May 10, 2018, defendant moved to dismiss the claim on jurisdictional grounds. When the claim was called for trial, claimant stated that he had not had the opportunity to reply to the motion prior to departing his home correctional facility to attend the trial. The return date on the motion was adjourned to June 20, 2018 and claimant was directed to serve and file papers in opposition to the motion not later than June, 11, 2018 (see So Ordered Correspondence, May 15, 2018), but has not done so.
Court of Claims Act § 11 (a) (i) requires a claim such as this to be served upon the Attorney General. It is well established that the filing and service requirements of the Court of Claims Act are jurisdictional in nature, and that the failure to timely serve the claim upon the Attorney General deprives the Court of subject matter jurisdiction (see Finnerty v New York State Thruway Auth., 75 NY2d 721, 722-723 [1989]; Matter of Dreger v New York State Thruway Auth., 177 AD2d 762, 762-763 [3d Dept 1991], affd 81 NY2d 721 [1992]; Locantore v State of New York, UID No. 2009-038-517 [Ct Cl, DeBow, J., Feb. 11, 2009]).
The claim that was filed with the court is unaccompanied by an affidavit of service. In support of its motion to dismiss, defendant submits an affidavit of an employee of the Office of the Attorney General (OAG) which demonstrates that on March 2, 2012, the OAG received correspondence from the Court of Claims acknowledging receipt of a claim, and that a search of the OAG's digital case management system failed to produce any record that the claim was ever served on the Attorney General (see Cagino Affirmation, Exhibit A, ¶¶ 5, 8). Thus, because defendant's submission establishes that the claim was not served on the Attorney General, and claimant has not opposed the motion and has thereby failed to refute the lack of service, the claim must be dismissed for lack of jurisdiction.
Accordingly, it is
ORDERED, that motion number M-92038 is GRANTED, and claim number 120895 is DISMISSED.
August 1, 2018
Saratoga Springs, New York
W. BROOKS DeBOW
Judge of the Court of Claims Papers considered: (1) Claim number 120895, filed February 6, 2012; (2) Correspondence of Brian M. Wilson, Assistant Court Analyst, dated March 14, 2018; (3) Notice of Motion to Dismiss, dated April 2, 2018; (4) Affirmation of Paul F. Cagino, AAG, in Support of Motion to Dismiss, dated April 2, 2018, with Exhibit A (Affidavit of Debra L. Mantell, sworn to April 2, 2018); (5) Affidavit of Service, sworn to April 2, 2018; (6) So Ordered Correspondence, dated May 15, 2018.