Tuszynski v. State

Appellate Division of the Supreme Court of New York

Tuszynski v. State

156 A.D.3d 1472, 65 N.Y.S.3d 837

Appellate Division of the Supreme Court of the State of New York·Decided December 22, 2017·No. Claim No. 125827·Published·Cited by 1 cases

Opinion

Appeal from an order of the Court of Claims (Renee Forgensi Minarik, J.), entered June 15, 2016. The order granted defendant’s motion to dismiss the claim.

It is hereby ordered that the order so appealed from is unanimously affirmed without costs.

Memorandum: Claimant, a pro se inmate, appeals from an order granting defendant’s motion to dismiss the claim. We affirm. Inasmuch as claimant served the claim by regular mail, the Court of Claims was deprived of subject matter jurisdiction and thus properly dismissed the claim (see Zoeckler v State of New York, 109 AD3d 1133, 1133 [4th Dept 2013]; see generally Court of Claims Act § 11 [a]). Contrary to claimant’s contention, there is no evidence in the record of “ 'misfeasance or malfeasance on the part of facility officials’ that would warrant an estoppel” (Butler v State of New York, 126 AD3d 1247, 1247 [3d Dept 2015]; cf. Wattley v State of New York, 146 Misc 2d 968, 969-970 [Ct Cl 1990]).

Present—Whalen, P.J., Smith, Carni, Troutman and Winslow, JJ.

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Appeal from an order of the Court of Claims (Renee Forgensi Minarik, J.), entered June 15, 2016. The order granted defendant’s motion to dismiss the claim.

It is hereby ordered that the order so appealed from is unanimously affirmed without costs.

Memorandum: Claimant, a pro se inmate, appeals from an order granting defendant’s motion to dismiss the claim. We affirm. Inasmuch as claimant served the claim by regular mail, the Court of Claims was deprived of subject matter jurisdiction and thus properly dismissed the claim (see Zoeckler v State of New York, 109 AD3d 1133, 1133 [4th Dept 2013]; see generally Court of Claims Act § 11 [a]). Contrary to claimant’s contention, there is no evidence in the record of “ 'misfeasance or malfeasance on the part of facility officials’ that would warrant an estoppel” (Butler v State of New York, 126 AD3d 1247, 1247 [3d Dept 2015]; cf. Wattley v State of New York, 146 Misc 2d 968, 969-970 [Ct Cl 1990]).

Present—Whalen, P.J., Smith, Carni, Troutman and Winslow, JJ.

Tuszynski v. State, 156 A.D.3d 1472, 65 N.Y.S.3d 837 (N.Y. Ct. App. 2017).

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Opinion

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