Opinion
# 2015-049-018 Claim No. 123899 Motion No. M-85384 Motion No. M-85828
03-16-2015
MELVIN V. ARZU v. NEW YORK STATE DRIVER'S MOTOR VEHICLE DEPT.
Melvin V. Arzu, Pro Se Eric T. Schneiderman, New York State Attorney General By: Joseph L. Paterno, Assistant Attorney General
Synopsis
Claim dismissed for failure to timely serve the Attorney General.
Case information
UID: | 2015-049-018 |
Claimant(s): | MELVIN V. ARZU |
Claimant short name: | ARZU |
Footnote (claimant name) : | |
Defendant(s): | NEW YORK STATE DRIVER'S MOTOR VEHICLE DEPT. |
Footnote (defendant name) : | |
Third-party claimant(s): | |
Third-party defendant(s): | |
Claim number(s): | 123899 |
Motion number(s): | M-85384, M-85828 |
Cross-motion number(s): | |
Judge: | DAVID A. WEINSTEIN |
Claimant's attorney: | Melvin V. Arzu, Pro Se |
Defendant's attorney: | Eric T. Schneiderman, New York State Attorney General By: Joseph L. Paterno, Assistant Attorney General |
Third-party defendant's attorney: | |
Signature date: | March 16, 2015 |
City: | Albany |
Comments: | |
Official citation: | |
Appellate results: | |
See also (multicaptioned case) |
Decision
Claimant Melvin Arzu, proceeding pro se, commenced this action by claim filed February 7, 2014. In that claim, he alleges that on September 24, 2013, an employee or agent of the New York State Department of Motor Vehicles ("DMV") failed to update his address. As a result, he did not receive suspension notices, his license was suspended without his knowledge, and he was terminated from a job which required that he maintain an active driver's license. The claim states, without elaboration, that it was served within 90 days of accrual.
On March 17, 2014, claimant filed an affidavit of service dated March 4, 2014, and stating that on February 4, 2014, he served the claim by certified mail return receipt requested. The affidavit did not say to whom the claim had been sent. Defendant State of New York did not file an answer.
By Order to Show Cause ("OTSC") dated July 15, 2014, this Court directed claimant to show cause why the claim should not be dismissed for claimant's failure to serve it properly (Motion No. M-85384). The OTSC stated that defendant should make such response as it deemed appropriate.
On August 29, 2014, the State filed an affirmation by Assistant Attorney General Joseph Paterno, and the affidavit of Min Chul Rhee, a clerk in the Attorney General's Claims Bureau. The latter stated that a search of the Attorney General's records in regard to this claim revealed only a letter from the Clerk of this Court, noting that the action had been filed. An e-mail to all Assistant Attorneys General in Albany and New York City and its suburbs, inquiring whether any had been served with the claim, turned up no positive response (Rhee Aff. ¶ 4).
On October 10, 2014, claimant filed another version of his claim, delineated an "amendment to correct caption and language." The amended claim lists the same accrual date as on the initial pleading - September 24, 2013. It also states that it was served within 90 days of accrual, but does not say when, how or upon whom.
On October 20, 2014, defendant moved to dismiss the claim on the ground that it was not filed or served within 90 days of the accrual date of September 24, 2013, and was therefore untimely (Motion No. M-85828). The motion alleges, via the affirmation of Assistant Attorney General Joseph Paterno, that the claim was not served upon the Attorney General until September 26, 2014 (Paterno Aff. ¶ 3), more than one year after accrual.
The Affirmation states that the claim was rejected for deficient verification on September 29, but was corrected the same day (Paterno Aff. at 2 n 2).
Arzu responded to the pending motions by affidavit filed January 5, 2015. In the affidavit, he describes the failure of DMV to update his address upon his request, and sets forth the significant hardship he and his family have endured since the suspension of his license, and the loss of his job. He asks that he be granted summary judgment, although no notice of motion accompanies the filing. The affidavit does not address the timeliness of his claim, or whether it was properly served. On January 9, he submitted an affidavit of service from one Octavio Nunoz, stating that he had mailed a motion and supporting papers to the Attorney General on December 30, 2014, under a cover letter stating that he forgot to include the affidavit in his original submission. Arzu does not identify the motion to which he is referring, although the only candidate in the Court's file would be the "affidavit in support" mentioned earlier, which as noted purports to be part of a summary judgment motion.
Defendant has filed a reply affirmation, noting that claimant has not responded to its arguments regarding the timeliness of the claim.
Discussion
The record before me contains three statements by Arzu regarding service - dated February 4 (as part of the initial claim), March 4 (filed separately) and September 10, 2014 (as part of the "amended" claim) - as well as the defendant's acknowledgment that it was served on September 26, 2014. The first two of these indicate that a claim was served within the time period for service on the Attorney General set by the Court of Claims Act, but do not identify the recipient, or provide a copy of the return receipt. The third was served more than 90 days after accrual.
It is claimant's burden to demonstrate proper service by a preponderance of the evidence
(see Boudreau v Ivanov, 154 AD2d 638, 639 [2d Dept 1989]; Woods v State of New York, UID No. 2011-013-001 [Ct Cl, Patti, J., Jan. 6, 2011]; Carchipulla v State of New York, UID No. 2009-030-512 [Ct Cl, Scuccimarra, J., Feb. 27, 2009]). Claimant may meet this burden through his or her affidavit of service, and need come forward with further evidence only after the State has rebutted that affidavit or otherwise objected to the manner of service (see Matter of Griffin v Griffin, 215 AD2d 386, 386 [2d Dept 1995] ["Where . . . . there is a sworn denial of service by the party allegedly served, the affidavit of service is rebutted and jurisdiction must be established by a preponderance of the evidence . . . ."]; White v State of New York, UID No. 2009-039-140 [Ct Cl, Ferreira, J., Aug. 28, 2009] ["once an objection to the manner of service is raised, claimant has the burden of establishing proper service by a preponderance of the evidence"]). To the extent claimant's two initial affidavits of service in this case are deemed sufficient to establish a prima facie case - despite the fact that they do not identify the recipient - they have been rebutted by the State's submission, and in particular by Rhee's sworn statement that the State has no record of being served at that time. Claimant has not produced any evidence in response, and thus has not met his burden of showing defendant was properly served through those submissions.
The State does not dispute that claimant served the Attorney General on September 26, 2014. Such service, however, was made over a year after the accrual date given by claimant. That claim was therefore served after both the 90-day time period for serving a negligence claim, and the six-month period for serving claims not covered by a specific subsection of Court of Claims Act §10, had elapsed (see Court of Claims Act §§ 10[3], [4]). Thus, even if the latter deadline applies, service was still untimely.
I need not, therefore, decide which of these governs this action.
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The time requirements of the Court of Claims Act are jurisdictional, provided they are raised with particularity in defendant's answer or in a pre-answer motion to dismiss (see Matter of Dreger v New York State Thruway Auth., 177 AD2d 762, 763 [3d Dept 1991], affd 81 NY2d 721 [1992]). Here, the State has adequately set forth the basis for its challenge to the timeliness of the action in its motion papers, and claimant has failed to rebut its contentions. Thus, the motion to dismiss must be granted.
In light of the foregoing, defendant's motion M-85828 is granted, and claim no. 123899 is dismissed. Motion no. M-85384 is denied as moot. To the extent claimant's affirmation may be deemed a motion for summary judgment, it is denied as moot as well.
March 16, 2015
Albany, New York
DAVID A. WEINSTEIN
Judge of the Court of Claims
Papers considered:
1. The Court's Order to Show Cause, dated July 15, 2014.
2. Defendant's Notice of Motion, Affirmation in Support and annexed exhibit.
3. Defendant's Affirmation with annexed exhibit.
4. Defendant's Reply Affirmation.
5. Claimant's Affidavit in Support with annexed exhibits.