Opinion
# 2014-049-053 Claim No. 124099 124245-A Motion No. M-84893 Motion No. M-85058 Motion No. M-85059 Cross-Motion No. CM-84989 Cross-Motion No. CM-85135
09-22-2014
RANDY L. DAVIS v. THE STATE OF NEW YORK
Randy Davis, Pro Se Eric T. Schneiderman, New York State Attorney General By: Aaron J. Marcus, Assistant Attorney General
Synopsis
The Court granted defendant's motion to dismiss inmate's claims. Claimant failed to serve his claims by a manner authorized by statute.
Case information
| UID: | 2014-049-053 |
| Claimant(s): | RANDY L. DAVIS |
| Claimant short name: | DAVIS |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 124099, 124245-A |
| Motion number(s): | M-84893, M-85058, M-85059 |
| Cross-motion number(s): | CM-84989, CM-85135 |
| Judge: | DAVID A. WEINSTEIN |
| Claimant's attorney: | Randy Davis, Pro Se |
| Defendant's attorney: | Eric T. Schneiderman, New York State Attorney General By: Aaron J. Marcus, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | September 22, 2014 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
In two separate claims (nos. 124245-A and 124099), claimant Randy Davis, an inmate proceeding pro se, alleges that defendant failed to properly tend to his medical condition, and that such condition was further exacerbated because of the lack of treatment.
Davis has now filed several motions in regard to his claim. By motion no. M-84893, claimant seeks an order to "vacate verified answer"; by motion no. M-85058, he seeks to "vacate judgement [sic] for amended verified answer"; and by motion no. M-85059, he seeks an order to "vacate judgement [sic] for verified answer." Claimant's respective applications are supported by his own affidavits.
Defendant has submitted papers in opposition to claimant's motions nos. M-84893 and M-85059, and cross moves to dismiss claim nos. 124245-A (CM-85135) and 124099 (CM-84989) on the ground that they were served in a manner not authorized by statute. Defendant's motions are supported by the affirmations of Assistant Attorney General Aaron J. Marcus, and supporting exhibits.
Background
On January 27, 2014 the Office of the Attorney General ("OAG") received from Davis via regular mail a verified claim and a notice of intention to file a claim. Copies of these documents are appended to defendant's papers, along with the envelope in which they were sent to the OAG (CM-84989, Ex. 1; CM-85135, Ex. 1). The envelope bears a 66-cent postage mark.
On March 3, 2014, defendant filed an answer to this claim (CM-85135, Ex.2; CM-84989, Ex. 2).
The OAG received correspondence from the clerk's office, dated March 20, 2014, acknowledging that the answer has been filed, but stating that the claim it addressed had not been filed (CM-85135, Ex. 3).
On March 20, the OAG received via regular mail a second verified claim from Davis. While the second claim appears to address a similar set of facts, it is not identical to the first claim. A copy of this document and the envelope in which it was sent to the OAG are appended to defendant's papers (CM-84989, Ex. 4). The envelope bears a 90-cent postage mark. On April 9, 2014, the clerk's office acknowledged the receipt of the second claim and it was assigned claim no. 124099 (CM-84989, Ex. 5).
On April 16, 2014, the OAG received via regular mail a third verified claim (CM-85135, Ex.4), nearly identical to the second. Defendant also appends a copy of these pleadings to its motion papers (id.). The envelope bears a postage mark in the amount of $1.44.
On May 15, 2014, the clerk's office acknowledged the receipt of this claim and it was assigned claim no. 124245-A (Ex. 5). The filed claim is not identical to the claim that had been served on the OAG on April 16, 2014, but is substantially similar.
Defendant has not filed an answer to the second and third claims (the only ones actually filed), and instead has made these pre-answer motions to dismiss.
Discussion
I will address defendant's cross motions to dismiss claim nos. 124099 and 124245-A first, as they are dispositive of these actions and render moot claimant's motions. Both cross motions seek dismissal on the ground that the respective claims were served in a manner not authorized by statute, but rather were served improperly by regular mail.
Court of Claims Act § 11(a)(i) provides in pertinent part that:
"The claim shall be filed with the clerk of the court; and . . ., 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. Any notice of intention shall be served personally or by certified mail, return receipt requested, upon the attorney general within the times hereinbefore provided for service upon the attorney general."
Compliance with these service requirements is a jurisdictional prerequisite to bringing suit in this Court, and service by an unauthorized method therefore compels dismissal (see Fulton v State of New York, 35 AD3d 977 [3d Dept 2006], lv denied 8 NY3d 809 [2007]; Govan v State of New York, 301 AD2d 757 [3d Dept 2003], lv denied 99 NY2d 510 [2003]), as long as the defect is raised with particularity either by a pre-answer motion to dismiss, or in the answer itself (Court of Claims Act § 11[c]).
Here, defendant raised claimant's failure to properly serve his claims in its pre-answer motions, with the particularity required by Court of Claims Act § 11(c). It has submitted affirmations attesting to claimant's service of both claims via regular mail, and has provided documentary support for these assertions. Claimant concedes in his motion papers that he "lack[ed] funds to cover certified mail receipt" (M-84893), and that he "would like for the Court to take into consideration that the claimant acted out of merit based upon poor person act" (M-85058, M-85059). Indeed, pursuant to CPLR 1101(f) claimant sought and was granted a reduction of the filing fee in both claim nos. 124245-A and 124099. However, neither the granting of such relief, nor claimant's indigence, provides a basis for him to avoid the service requirements of Court of Claims Act § 11(a)(i).
Further, the notice of intention that was served on the OAG on January 27 was also made by regular mail. Since that is not a permissible method of service, the notice was a nullity (see Fulton v State of New York, 35 AD3d at 978; Diggs v State of New York, UID No. 2006-009-040 [Ct Cl, Midey, J., July 24, 2006]).
Since the Court lacks jurisdiction over either of the claims filed by Davis, his motions are moot. I note that the object of those motions is to challenge the validity of an amended answer that defendant filed in response to Davis' first claim, which had been served (albeit by an improper method), but not filed. As claimant has failed to file this claim with the clerk of the court as required by CCA § 11(a)(i), the Court the lacks jurisdiction over it in any case, and thus the motions are not properly pending.
The clerk's office associated claimant's motion nos. M-85058 and M-84893 with claim no. 124099, and motion no. M-85059 with claim no. 124245-A. However the motions all appear to relate to Davis' initial claim, the one that has never been filed (see letter from the OAG to the chief clerk, dated March 3, 2014, referencing the claim served on it on January 27, 2014, Exhibit appended to claimant's motion no. M-85058).
Defendant does not specifically oppose motion no. M-85058. That is of no import, since the motion is rendered moot by the rulings set forth above.
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In view of the foregoing, it is
ORDERED that cross motion no. CM-84989 be granted and that claim no. 124099 be dismissed, and it is further
ORDERED that cross motion no. CM-85135 be granted and that claim no. 124245-A be dismissed, and it is further
ORDERED that motion nos. M-84893, M-85058, and M-85059 be denied as moot.
September 22, 2014
Albany, New York
DAVID A. WEINSTEIN
Judge of the Court of Claims
Papers Considered:
1. Claimant's Motion to Vacate Judgement for Amended Verified Answer (M-85058), and supporting papers;
2. Claimant's Motion to Vacate Judgement for Verified Answer (M-85059), and supporting papers;
3. Claimant's Motion to Vacate Verified Answer (M-84893);
4. Claimant's Letters to the Court dated April 13, 2014, April 28, 2014, April 30, 2014.
5. Defendant's Notice of Cross Motion, Affirmation in Opposition to Claimant's Motion to Vacate the Answer and in Support of Defendant's Motion to Dismiss (CM-84989), and annexed exhibits.
6. Claimant's submission to the Court dated May 6, 2014, and annexed exhibits.
7. Defendant's Notice of Cross Motion (CM-84989), Affirmation in Opposition to claimant's Motion to Vacate the Answer and in Support of Defendant's Cross Motion to Dismiss, and annexed exhibits (M-84893).