Opinion
# 2017-040-118 Claim No. 129304 Motion No. M-90461
09-11-2017
EMMETT LANIER v. THE STATE OF NEW YORK
Emmett Lanier, 08-A-5604, Pro Se ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Sean B. Virkler, Esq., AAG
Synopsis
Court's OSC granted and Claim dismissed as Claimant failed to submit proof that he served Claim upon Defendant.
Case information
| UID: | 2017-040-118 |
| Claimant(s): | EMMETT LANIER |
| Claimant short name: | LANIER |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | Caption amended to reflect the State of New York as the proper defendant. |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 129304 |
| Motion number(s): | M-90461 |
| Cross-motion number(s): | |
| Judge: | CHRISTOPHER J. McCARTHY |
| Claimant's attorney: | Emmett Lanier, 08-A-5604, Pro Se |
|---|---|
| Defendant's attorney: | ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Sean B. Virkler, Esq., AAG |
| Third-party defendant's attorney: | |
| Signature date: | September 11, 2017 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
By Order to Show Cause (hereinafter, "OSC") returnable July 26, 2017, the Court noted that Claimant may have failed to comply with the service requirements of Section 11 of the Court of Claims Act. The parties were ordered to submit a written statement relating to service of the Claim. The OSC also stated that, if the State wishes "to assert that the Claim was not served on the Attorney General, that statement should come from someone with personal knowledge of the contents of files and records of the Department of Law."
The Claim was filed with the Clerk of the Court on February 14, 2017. The State did not file a verified answer to the Claim.
In response to the Court's order, Claimant submitted to the Court on July 17, 2017 photocopies of two US Postal Service certified mail, return receipt cards. This information was provided only to the Court and not to Defense counsel as required. The Court then forwarded a copy of Claimant's response to Defendant by letter dated July 25, 2017. One return receipt is addressed to the Court of Claims and is stamped received by the Court on February 24, 2017 and was signed for by Sherri L. Deome. The other return receipt card is addressed to the Attorney General, at the Capitol, Albany, New York. It is stamped received by the "NYS DEPT OF LAW" on February 6, 2017. The Court further notes that the receipt is for Article Number 7016 2140 0001 1461 6983. It further appears that Claimant signed his name on the line that is provided for the recipient of the article. The return receipt card establishes only that a letter or package was delivered to the Attorney General in Albany, New York, on February 6, 2017, by certified mail, return receipt requested.
Defendant submitted the Affidavit of Debra L. Mantell, a Legal Assistant II in the Albany Office of the Attorney General. Ms. Mantell attests that she is familiar with the electronic record-keeping system of the Attorney General's office regarding notices of intention to file claims and claims that are filed in the Court of Claims or received in the Attorney General's office. She further attests that, upon her thorough search of the records of the New York State Attorney General's office, she found no record that a Claim in this matter has been served on the Attorney General. She further states that she "ran" a report detailing "every pleading, motion and Court letter that this office has received in reference to the Claimant named in this matter."
Defendant also submitted the Affidavit of Bonnie Cobb, a "Sec. II in the Utica Regional Office" of the Attorney General. Ms. Cobb attests that she is familiar with the record-keeping system of the Attorney General's office regarding petitions and claims that are served upon the Attorney General. She further attests that, upon her thorough search of the records of the Attorney General's Utica Regional Office, she found no record that a Claim in this matter has been served on the Attorney General.
In addition, in a letter to the Court, dated July 27, 2017, Assistant Attorney General Sean B. Virkler, Esq., states that Article Number 7016 2140 0001 1461 6983 received by the Attorney General on February 6, 2017 relates to a Complaint brought by Mr. Lanier in the Northern District of New York which is being handled by the Attorney General's Litigation Bureau in Albany. A photocopy of the Complaint, with the caption "United States District Court for the Northern District of New York"and the front and back of the envelope in which it was mailed are attached as exhibits to the letter. The Court notes that the front of the envelope contains a certified mail sticker with the article number 7016 2140 0001 1461 6983 below it and is postmarked February 1, 2017. The back of the envelope is stamped "2/6/17" and contains a notation, "For Litigation." Claimant did not submit any reply papers contradicting the State's statements.
As Claimant did not provide a copy of his response to the OSC to Defendant as required by statute and Defendant received a copy from the Court on or about the return date of the OSC, the Court will accept Defense Counsel's letter dated one day after the return date. --------
Claimant has provided no proof of service of the Claim upon the State of New York.
Accordingly, it is:
ORDERED that this Claim is dismissed.
September 11, 2017
Albany, New York
CHRISTOPHER J. McCARTHY
Judge of the Court of Claims The following papers were read and considered by the Court: Papers Numbered Order to Show Cause 1 Claim 2 Letter from Claimant with Exhibit attached 3 Letter from Sean B. Virkler, Esq., Assistant Attorney General & Exhibits attached 4