Opinion
# 2019-032-033 Claim No. 132064 Motion No. M-93572
06-03-2019
RONDUE GENTRY v. THE STATE OF NEW YORK
Rondue Gentry, Pro Se Hon. Letitia James, Attorney General By: Glenn C. King, Assistant Attorney General
Synopsis
The Court's Order to Show Cause directing claimant to demonstrate why the claim should not be dismissed for lack of jurisdiction for failure to comply with the service requirements of Court of Claims Act § 11 is granted. Claimant failed to serve the claim upon the Attorney General.
Case information
| UID: | 2019-032-033 |
| Claimant(s): | RONDUE GENTRY |
| Claimant short name: | GENTRY |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 132064 |
| Motion number(s): | M-93572 |
| Cross-motion number(s): | |
| Judge: | JUDITH A. HARD |
| Claimant's attorney: | Rondue Gentry, Pro Se |
| Defendant's attorney: | Hon. Letitia James, Attorney General By: Glenn C. King, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | June 3, 2019 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant filed the instant claim on September 28, 2018 seeking damages for injuries sustained as a result of claimant's alleged wrongful arrest and malicious prosecution that took place on or about April 18, 2017. The claim was not accompanied by an Affidavit of Service, and proof of service of the claim upon the Attorney General was not filed with the Clerk of the Court (see 22 NYCRR 206.5 [a]). On its own motion, the Court issued an Order to Show Cause, dated February 27, 2019 and filed on March 6, 2019, directing claimant to demonstrate why the claim should not be dismissed for lack of jurisdiction based upon claimant's failure to comply with the service requirements of Court of Claims Act § 11.
"A claimant seeking to recover damages for personal injuries caused by the negligence, intentional tort or unintentional tort of an officer or employee of the State must file and serve a claim or, alternatively, a notice of intention to file such a claim, upon the Attorney General within 90 days after the accrual thereof" (Maude V. v New York State Off. of Children & Family Servs., 82 AD3d 1468, 1469 [3d Dept. 2011]; see Court of Claims Act § 10 [3], [3-b]). Court of Claims Act § 11 (a) (i) provides that a "claim shall be filed with the clerk of the court; and . . . a copy 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." "[A]s suits against defendant are permitted only by virtue of its waiver of sovereign immunity and are in derogation of the common law, the failure to strictly comply with the filing or service provisions of the Court of Claims Act divests the court of subject matter jurisdiction and compels dismissal of the claim" (Caci v State of New York, 107 AD3d 1121, 1122 [3d Dept. 2013] [internal quotation marks and citations omitted]; see Finnerty v New York State Thruway Auth., 75 NY2d 721, 722-723 [1989]; Rodriguez v State of New York, 307 AD2d 657, 657 [3d Dept. 2003]). Once challenged, the burden is upon the claimant to establish proper service by a preponderance of the credible evidence (see Caci v State of New York, 107 AD3d at 1124; Boudreau v Ivanov, 154 AD2d 638, 639 [2d Dept. 1989]; Aquila v Aquila, 129 AD2d 544, 545 [2d Dept. 1987]).
In response to the Court's Order to Show Cause, claimant submitted a letter, dated April 5, 2019, stating that he was unaware that he was required to serve a copy of the claim upon the Attorney General. He further stated that he believed that the Court would serve the claim, and requested an extension of time for service of the claim. On May 1, 2019, claimant filed with the Clerk of the Court an Affidavit of Service purportedly showing that the claim was served upon the Attorney General on April 27, 2019.
In response to the Court's Order to Show Cause, defendant has submitted an affidavit sworn to by Debra L. Mantell, Legal Assistant II in the Office of the Attorney General (OAG) in Albany, New York, whose job duties require her to be familiar with the office's record keeping system (Exhibit B). On May 14, 2018, the OAG received a notice of intention to file a claim from claimant for an incident that allegedly occurred on or about April 18, 2017 at Albany City Court (Mantell Aff. ¶ 5). On or about November 16, 2018, the OAG received a letter from the Court of Claims informing the OAG that the Court had received a claim in this matter on September 28, 2018 (id. ¶ 6). After receiving the letter from the Court of Claims and searching the OAG's case management system, Mantell found that, on May 14, 2018, claimant served a notice of intention to file a claim upon the OAG by certified mail, return receipt requested (Mantell Aff. ¶¶ 7-9). However, the OAG's case management system disclosed no record showing that the OAG was served with a claim in this matter (Mantell Aff. ¶ 10).
"A properly executed affidavit of service raises a presumption that a proper mailing occurred" (Engel v Lichterman, 62 NY2d 943, 944 [1984]). However, where the affidavit of service filed with the Court is defective, a claimant cannot rely on it to establish proper service (Allen v State of New York, UID No. 2002-028-014 [Ct Cl, Sise, J., Mar. 21, 2002]). Upon inspection, the Court finds that the filed Affidavit of Service for the instant claim is facially defective in that it fails to state that a claim was served by certified mail, return receipt requested (see id.). Thus, the Affidavit of Service is not "properly executed" (see Engel v Lichterman, 62 NY2d at 944). Furthermore, the Court finds that defendant has set forth sufficient probative facts showing that the claim was not served upon defendant by submitting the sworn statement of Debra L. Mantell, which states that a review of the OAG's records failed to locate a claim in this matter (Mantell Aff. ¶ 10). Because claimant has offered no evidence to dispute defendant's assertion that the claim was not properly served upon the Attorney General, the Court finds that claimant has failed to meet his burden of establishing proper service (see Court of Claims Act § 11 [a] [i]; Caci v State of New York, 107 AD3d at 1123-1124; Allen v State of New York, UID No. 2002-028-014 [Ct Cl, Sise, J., Mar. 21, 2002]). Accordingly, the claim must be dismissed (see Finnerty v New York State Thruway Auth., 75 NY2d at 723).
Accordingly, it is hereby
ORDERED that Court's motion (M-93572) is granted and claim number 132064 is dismissed.
June 3, 2019
Albany, New York
JUDITH A. HARD
Judge of the Court of Claims Papers Considered: 1. Verified Claim, filed on September 28, 2018. 2. Order to Show Cause, dated February 27, 2019. 3. Affirmation of Glenn C. King, AAG, affirmed on March 25, 2019, with Exhibits A through B annexed thereto. 4. Letter from Claimant, dated April 5, 2019. 5. Affidavit of Service, sworn to by claimant on April 27, 2019.