Opinion
# 2014-048-158 Claim No. 117356 117413 Motion No. M-84979
09-17-2014
ROBERT SIOLESKI v. THE STATE OF NEW YORK
ROBERT SIOLESKI, Pro Se HON. ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: James Williams, Esq. Assistant Attorney General
Synopsis
The Court dismissed the Claim, concluding that it lacked subject matter jurisdiction over the matter based on Claimant's failure comply with the service requirements of Court of Claims Act § 11 (a) (i).
Case information
| UID: | 2014-048-158 |
| Claimant(s): | ROBERT SIOLESKI |
| Claimant short name: | SIOLESKI |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 117356, 117413 |
| Motion number(s): | M-84979 |
| Cross-motion number(s): | |
| Judge: | GLEN T. BRUENING |
| Claimant's attorney: | ROBERT SIOLESKI, Pro Se |
| Defendant's attorney: | HON. ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: James Williams, Esq. Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | September 17 2014 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant, Robert Sioleski, filed two Claims - one on September 3, 2009, bearing Claim Number 117356 and one on September 17, 2009, bearing Claim Number 117413. Both Claims seek damages for personal injuries sustained as a result of Defendant's negligence and/or medical malpractice when, on July 27, 2009, Claimant suffered from certain negative side effects as a result of his prescribed medication, while confined at Mid-State Correctional Facility, under the supervision of the Department of Correctional Services (DOCS). While Claimant filed an Affidavit of Service with Claim No. 117356, that document states that a "Tort Claim Intentional" was served on the Clerk of the Court of Claims on August 25, 2009, but fails on its face to state that a copy of the Claim was served on the Attorney General. Claimant has not filed an affidavit attesting that Claim No. 117413 was served on the Attorney General. No answer was filed by Defendant in either action.
DOCS is now known as the Department of Corrections and Community Supervision (DOCCS) (see L 2011, c 62, pt C, subpt A, § 4, eff. March 31, 2011). Inasmuch as the Claim relates to acts that occurred prior to the name change, this Decision will refer to the Executive Agency by its former name
.
By correspondence dated May 13, 2010, Claimant advised that he does not wish to proceed with Claim Number 117413.
In an Order to Show Cause, filed April 24, 2014 and returnable May 28, 2014, the Court noted that upon review of the Claim files, Claimant may have failed to comply with the service requirements of Section 11 of the Court of Claims Act. The Court therefore directed the parties to submit written statements and evidence relating to service of the Claims. On April 24, 2014, a copy of the Order to Show Cause was delivered to the Attorney General and mailed to Claimant at his last known address on file with the Clerk of the Court of Claims.
Court of Claims Act § 11 (a) (i) mandates that a copy of the Claim be served personally or by certified mail, return receipt requested, upon the Attorney General within the applicable time period provided in Section 10 of the Court of Claims Act. Failure to serve the Attorney General with the Claim divests the Court of subject matter jurisdiction (see Finnerty v New York State Thruway Auth., 75 NY2d 721, 723 [1989]; Maude V. v New York State Off. of Children & Family Servs., 82 AD3d 1468, 1469 [3d Dept 2011]).
In response to the Court's Order to Show Cause, the Attorney General states that, on or about August 27, 2009, the Attorney General's Office received, via regular mail, a one-page, handwritten document from Claimant entitled "Notice of Intention," which alleged the misconduct of DOCS correction officers occurring "July 27" (Affirmation of James Williams, Esq., Exhibit B). On September 3, 2009 the Attorney General's Office received a three-page document from Claimant entitled "Notice of Intention to File a Claim," which was sent via certified mail, return receipt requested, bearing article number 7007 1490 0004 3571 2064, and which alleged the misconduct of DOCS correction officers occurring "July 27th" (Affirmation of James Williams, Esq., Exhibit C). The Attorney General offers the Affidavits of Janet Barringer, a Senior Clerk in the Claims Bureau of the Albany Office of the Attorney General, who, after a search of the records of the Office of the Attorney General with respect to both Claim Number 117413 and 117356, confirms the receipt of the above-referenced "Notice of Intention" and the "Notice of Intention to File a Claim," and attests that she could find no record that the Attorney General was served with a Claim in either matter (see Affirmation of James Williams, Esq., Exhibit A).
In response to the Order to Show Cause, Claimant provided the Court with correspondence, dated April 28, 2014, referencing "a certified slip/return receipt card to the Attorney General, and also Court of Claims dated 10/22/09." However, while Claimant attached a receipt for certified mail sent to the Court of Claims on September 2, 2009, with its return receipt (signed for on September 3, 2009), both bearing article number 7007 1490 0004 3571 2026, absent from the submission was a copy of any certified receipt of mailing of either Claim to the Attorney General's Office, or its corresponding return receipt. Accordingly, by correspondence dated May 15, 2014, the Court provided Claimant with additional time to submit evidence in response to the Order to Show Cause. Thereafter, Claimant advised that he is unable to find the certified receipt of mailing to the Attorney General's Office. Claimant, instead, attached a form entitled "CERTIFIED SLIP/RETURN RECEIPT CARD," (slip) on which is handwritten Claimant's name, DIN, certified mailing and return receipt number (7007 1490 0004 3571 2064) and the date of October 22, 2009. Below this information, the slip states:
Also submitted to the Court are affidavits of service, both without any court caption. The first is sworn to on April 22, 2010, and attests that on that date an "Order to Show Cause, Affidavit in Support of Order to Show Cause, Affidavit in Support of Requests for Reduced Filing Fees, Petition, Verification, Affidavit in Support of Petition, and Affidavit of Service" was mailed to the Attorney General, DOCS and the Clerk of the Court of Claims via regular mail (Claimant's submission, received May 1, 2014). The second affidavit of service is sworn to on May 11, 2010, and attests that an "Order to Show Cause, Affidavit in Support of Order to Show Cause, Affidavit in Support of Petition, and Affidavit of Service" was mailed to the Attorney General, DOCS and the Clerk of the Court of Claims via regular mail (Claimant's submission, received and filed May 12, 2014). However, neither affidavit attests that the a Claim in either action number 117356 or 117413 was served on the Attorney General.
Here is your certified Slip/Return Receipt card that you sent out on your letter. Retain this original for your records as it is your ONLY proof should you have a problem with your letter.
FROM CORRESPONDENCE DEPARTMENT
(Attachment to Claimant's Correspondence, received May 22, 2014).
At the bottom of the slip is the handwritten notation - "Attorney General" - in what appears to be Claimant's handwriting
.
There is no indication what documents the slip purports to mail and to where any documents were mailed and, moreover, the return receipt number 7007 1490 0004 3571 2064 referenced in the slip is the same number that corresponds with the "Notice of Intention to File a Claim," which was mailed to the Attorney General's Office via certified mail, return receipt requested, and received by the Attorney General's Office on September 3, 2009 (Affirmation of James Williams, Esq., Exhibit C).
In light of the proof before it, the Court concludes that Claimant did not serve either Claim Number 117356 or Claim Number 117413 upon the Attorney General as required by Court of Claims Act § 11 (a) (i), thus depriving the Court of subject matter jurisdiction (see Finnerty v New York State Thruway Auth., 75 NY2d at 723).
Accordingly, both Claim No. 117356 and Claim No. 117413 are dismissed.
September 17 2014
Albany, New York
GLEN T. BRUENING
Judge of the Court of Claims
The following papers were read and considered by the Court:
Claim 117356, filed September 3, 2009;
Claim 117413, filed September 17, 2009;
Order to Show Cause, filed April 24, 2014;
Correspondence from Claimant, received May 1, 2014, with attachments consisting of six pages;
Correspondence from Claimant, received and filed May 12, 2014, with submission consisting of 39 pages, some being two-sided;
Correspondence from the Court, dated May 15, 2014;
Affirmation of James Williams, Esq., dated May 19, 2014, with Exhibits A-E and Affirmation of Service;
Correspondence from Claimant, received May 22, 2014, with attached "CERTIFIED SLIP/RETURN RECEIPT CARD;"
Correspondence from Claimant, received June 4, 2014 with attachments consisting of 32 pages.