Michael Driscoll, Claimant-Appellant, v. New York State Attorney General's Office Litigation Unit, Defendant-Respondent.

Reset A A Font size: Print

Supreme Court, Appellate Division, First Department, New York.

Michael Driscoll, Claimant-Appellant, v. New York State Attorney General's Office Litigation Unit, Defendant-Respondent.

2038

Decided: January 26, 2010

Tom, J.P., Saxe, Nardelli, Renwick, Freedman, JJ. Michael Driscoll, appellant pro se.   Andrew M. Cuomo, Attorney General, Albany (Kathleen M. Treasure of counsel), for respondent.

_

Order of the Court of Claims of the State of New York (Alan C. Marin, J.), entered June 1, 2009, which denied claimant's motion for a default judgment, unanimously modified, on the law,

to the extent of dismissing the underlying claim for lack of subject matter jurisdiction, and otherwise affirmed, without costs.   The Clerk is directed to enter judgment dismissing the claim.

The motion court correctly denied claimant's motion for a default judgment as contrary to Court of Claims Act § 12(1).   Defendant, apparently receiving its first notice of this pro se matter on this appeal, also correctly asserts the lack of subject matter jurisdiction in the Court of Claims (see Matter of Fry v. Village of Tarrytown, 89 N.Y.2d 714, 718 [1997];  Ranz v. Sposato, 77 A.D.2d 408, 409-410 [1980];  McConnell v. Williams S.S. Co., 239 AD 393, 395 [1933], affd no opinion 265 N.Y. 594 [1934] ), since the underlying claim, inter alia, does not comply with the pleading requirements of Court of Claims Act § 11[b] (see Kolnacki v. State of New York, 8 NY3d 277, 280 [2007];  Lepkowski v. State of New York, 1 NY3d 201, 206-207 [2003] ) and seeks judicial review by the Court of Claims of claimant's divorce proceedings (see Court of Claims Act § 9[2] ).   Hence, such dismissal is warranted.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

_

CLERK