Opinion
# 2018-032-038 Claim No. 125831 Motion No. M-91937
07-03-2018
OMAR PENA v. THE STATE OF NEW YORK
Omar Pena, Pro Se Hon. Barbara D. Underwood, NYS Attorney General By: Paul F. Cagino, Assistant Attorney General, Of Counsel
Synopsis
The claim is dismissed for failure to comply with the service requirements of Court of Claims Act § 11.
Case information
| UID: | 2018-032-038 |
| Claimant(s): | OMAR PENA |
| Claimant short name: | PENA |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 125831 |
| Motion number(s): | M-91937 |
| Cross-motion number(s): | |
| Judge: | JUDITH A. HARD |
| Claimant's attorney: | Omar Pena, Pro Se |
| Defendant's attorney: | Hon. Barbara D. Underwood, NYS Attorney General By: Paul F. Cagino, Assistant Attorney General, Of Counsel |
| Third-party defendant's attorney: | |
| Signature date: | July 3, 2018 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
On March 20, 2015, claimant, proceeding pro se, filed a claim with the Clerk of the Court seeking damages for injuries sustained on February 16, 2015 when a piece of plaster fell on claimant from the ceiling of the kitchen area at Wallkill Correctional Facility ("Wallkill"). The Affidavit of Service filed with the Court indicates that a Claim was served by certified mail, return receipt requested on the New York State Court of Claims. The Affidavit of Service does not indicate that the Attorney General was served. A copy of a certified mailing receipt attached to the Affidavit of Service indicates that the "NYS Department of Law" received a mailing on March 9, 2015. The address section of the copy of the certified mailing receipt is cut off, but indicates that the "General's office of Law" received the mailing.
The Court, sua sponte, issued an Order to Show Cause, dated March 12, 2018 and filed on March 13, 2018, 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. The Order to Show Cause was served upon claimant by regular mail, in accordance with the directives of that Order, at the last address provided by claimant. As of the date of this Decision and Order, claimant has not responded to the Order to Show Cause and issue has not been joined in the action.
"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, defendant has submitted an affidavit sworn to by Debra L. Mantell, Legal Assistant II in the Albany Office of the Attorney General (OAG) of the State of New York, whose job duties require her to be familiar with the digital case management system maintained by the OAG (Exhibit B). Mantell avers that, on April 6, 2015, the OAG received a letter from this Court dated April 3, 2015 informing the OAG that the Court had received and filed the instant claim on March 20, 2015 (Mantell Aff. ¶ 5). Mantell searched for the claim in the OAG's record-keeping system but did not find the claim to which the letter refers (id.). Accordingly, she created a record in the OAG's record-keeping system that listed the Court's letter as "unmatched" (id.). Mantell further states that she contacted the Clerk of the Court of Claims on April 9, 2018 requesting a copy of the filed document referenced in the Court's April 3, 2015 letter (Mantell Aff. ¶ 6). After receiving a copy of the instant claim, Mantell performed another search of the OAG's record-keeping system (Mantell Aff. ¶ 7). She did not find the instant claim, but found that the OAG received a Notice of Intention from claimant by certified mail, return receipt requested, on March 9, 2015 (Mantell Aff. ¶ 8 [a]). The OAG's record-keeping system disclosed no record indicating that the office received a claim from claimant for an incident that occurred on February 16, 2015 at Wallkill (Mantell Aff. ¶ 9). The Court has reviewed the Notice of Intention received by the OAG on March 9, 2015 (Exhibit A), and notes that the Notice of Intention is clearly a different document than the claim filed by claimant in this Court on March 20, 2015.
"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 the name of the entity or address to which the claim was purportedly mailed (see id.). Thus, the Affidavit of Service is not "properly executed" (see Engel v Lichterman, 62 NY2d at 944). Further, in light of the exhibits submitted by defendant, the Court finds that defendant has set forth sufficient probative facts showing that the claim was not served upon it. 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).
Based upon the foregoing, it is hereby
ORDERED, that the Court's motion (M- 91937) is granted and claim number 125831 is dismissed.
July 3, 2018
Albany, New York
JUDITH A. HARD
Judge of the Court of Claims Papers Considered: 1. Verified Claim, filed on March 20, 2015. 2. Notice of Motion, dated March 13, 2018; and Affirmation in Compliance with Order to Show Cause, affirmed by Paul F. Cagino, AAG on April 11, 2018, with Exhibits A through B annexed thereto.