Opinion
# 2019-015-128 Claim No. 126598-A Motion No. M-93539
03-25-2019
MICHAEL VASQUEZ, 10-A-4381 v. STATE OF NEW YORK
No Appearance Honorable Letitia James, Attorney General By: Michael C. Rizzo, Esq., Assistant Attorney General
Synopsis
Defendant's dismissal motion was granted for lack of service of the claim.
Case information
| UID: | 2019-015-128 |
| Claimant(s): | MICHAEL VASQUEZ, 10-A-4381 |
| Claimant short name: | VASQUEZ |
| Footnote (claimant name) : | |
| Defendant(s): | STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 126598-A |
| Motion number(s): | M-93539 |
| Cross-motion number(s): | |
| Judge: | FRANCIS T. COLLINS |
| Claimant's attorney: | No Appearance |
| Defendant's attorney: | Honorable Letitia James, Attorney General By: Michael C. Rizzo, Esq., Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | March 25, 2019 |
| City: | Saratoga Springs |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Defendant moves for dismissal pursuant to CPLR 3211 (a) (2) on the ground the claim was not served upon the Attorney General as required by Court of Claims Act §11 (a) (i).
Claimant, a former inmate, filed a claim on August 14, 2015 seeking damages for "Delibrite Indiffrence [sic]" arising from several disciplinary confinements to the Special Housing Unit for fighting (claim, ¶ 2). He alleges the claim accrued on July 21, 2015.
Defendant contends in support of its dismissal motion that the claim was not served upon the Attorney General. Defendant's contention is supported by both defense counsel's affirmation and the affidavit of Debra L. Mantell, Legal Assistant II in the Albany Office of the Attorney General. Defense counsel indicates, based upon his personal review of the file maintained by the Office of the Attorney General, that there is no record of service of a claim in this matter. Ms. Mantell states in her affidavit that it is the usual business practice of the Attorney General's Office to record the receipt of claims and notices of intention to file a claim in its digital case-management system, and that her search of this system failed to reflect that either a claim or notice of intention to file a claim was served on the Office of the Attorney General in this matter.
The State's waiver of immunity under section 8 of the Court of Claims Act is contingent upon claimant's compliance with the specific conditions to suit set forth in article II of the Court of Claims Act (Lepkowski v State of New York, 1 NY3d 201, 206 [2003]). Among these conditions is the service requirement contained in Court of Claims Act § 11 (a) (i) which provides, in relevant part, that a copy of the claim "shall be served personally or by certified mail, return receipt requested, upon the attorney general within the times hereinbefore provided for filing with the clerk of the court." The failure to serve a claim upon the Attorney General is a non-waivable jurisdictional defect which divests this Court of subject matter jurisdiction (Finnerty v New York State Thruway Auth., 75 NY2d 721, 723 [1989]; Caci v State of New York, 107 AD3d 1121 [3d Dept 2013]; Johnson v New York State, 71 AD3d 1355, 1355 [3d Dept 2010], lv denied 15 NY3d 703 [2010]; cf. Court of Claims Act § 11 [c] [ii]).
Defendant established in support of its motion that the claim was not served upon the Attorney General as required by Court of Claims Act § 11 (a) (i). While the affidavit of service attached to the filed claim indicates that an unspecified document was served upon the Attorney General by certified mail, return receipt requested, on June 24, 2015, the claim itself indicates a notice of intention, not a claim, was served on that date. In addition, the claim was not verified until August 6, 2015. Thus, there being no opposition to the motion and in the absence of any evidence that the claim was served on the Attorney General, dismissal of the claim is required.
Accordingly, defendant's motion is granted, and the claim is dismissed.
March 25, 2019
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims Papers Considered:
1. Notice of motion dated February 20, 2019;
2. Affirmation in support dated February 20, 2019;
3. Claim filed August 14, 2015, with attachments.