Opinion
# 2015-049-017 Claim No. 124068 Motion No. M-85831 Cross-Motion No. CM-85939
03-16-2015
MICHAEL SHEARD v. STATE OF NEW YORK DEPARTMENT OF CORRECTIONS AND COMMUNITY SUPERVISION
Michael Sheard, Pro Se Eric T. Schneiderman, New York State Attorney General By: Douglas H. Squire, Assistant Attorney General
Synopsis
Defendant's motion to dismiss granted. The claim was not served on the Attorney General.
Case information
| UID: | 2015-049-017 |
| Claimant(s): | MICHAEL SHEARD |
| Claimant short name: | SHEARD |
| Footnote (claimant name) : | |
| Defendant(s): | STATE OF NEW YORK DEPARTMENT OF CORRECTIONS AND COMMUNITY SUPERVISION |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 124068 |
| Motion number(s): | M-85831 |
| Cross-motion number(s): | CM-85939 |
| Judge: | DAVID A. WEINSTEIN |
| Claimant's attorney: | Michael Sheard, Pro Se |
| Defendant's attorney: | Eric T. Schneiderman, New York State Attorney General By: Douglas H. Squire, 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
In a claim filed March 17, 2014, claimant Michael Sheard, an inmate proceeding pro se, alleges that he was wrongfully confined to the Special Housing Unit ("SHU") as the result of a tier III disciplinary hearing that found him guilty of the use of a controlled substance. Defendant has not filed an answer.
Claimant now moves for summary judgment, arguing that he served 120 days in the SHU notwithstanding that his sentence was reduced to three months. In support of this contention, claimant attaches respondents' brief submitted in a CPLR article 78 proceeding concerning this matter, in which the error was acknowledged (Cl. Aff. in Supp. Ex. A). The Third Department made note of this concession in its decision in Matter of Sheard v Fischer (107 AD3d 1261 [3d Dept 2013]).
Defendant State of New York opposes the motion and cross moves to dismiss the claim on the grounds that the claim was not served on the Attorney General, and that in any event such claim was untimely filed. Defendant supports its motion with the affidavit of Janet Barringer, a Senior Clerk in the Office of the Attorney General, who states that a thorough records search revealed that her office received: 1) a letter from the Court acknowledging the receipt of a claim on March 17, 2014, entitled Sheard v State of New York, and 2) a document entitled Notice of Intention to file a claim, served on September 4, 2013, entitled Sheard v State of New York. Ms. Barringer asserts that the Attorney General was never served with the claim itself. Claimant does not oppose defendant's application.
Since defendant's application would, if granted, dispose of this action, I will address it first.
Court of Claims Act § 11(a)(I) provides in pertinent part that:
"[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."
Compliance with these service requirements is a jurisdictional prerequisite for bringing suit in this Court (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]). The burden of proving proper service is on the claimant 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]).
While claimant filed an affidavit of service stating that he mailed a copy of the claim to the Attorney General, the State has presented adequate proof, via the affidavit of Ms. Barringer, that it was not served with the claim, thereby rebutting claimant's affidavit (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 . . . ."]; Edwards v State of New York, UID No. 2010-039-176 [Ct Cl, Ferreira, J., Feb. 26, 2010] [affidavit attesting that thorough search of files failed to show evidence that claim was served is "sufficient proof" to establish lack of service]). Claimant has submitted no opposition to the motion, and therefore fails to present any evidence to refute the defendant's proof.
The affidavit gives no indication that the claim was served in one of the methods permitted by statute: certified mail, return receipt requested or personal service (see Court of Claims Act § 11[a][I]). Instead, it merely states that the pleading was mailed to the Attorney General.
In view of the foregoing, it is
ORDERED that defendant's cross motion. CM-85939 be granted and claim no. 124068 be dismissed; and it is further
ORDERED that claimant's motion no. M-85831 be denied as moot.
March 16, 2015
Albany, New York
DAVID A. WEINSTEIN
Judge of the Court of Claims
Papers Considered:
1. Claimant's Notice of Motion for Summary Judgment, Affidavit in Support and supporting papers.
2. Defendant's Notice of Cross Motion, Affirmation in Opposition to Claimant's Motion for Summary Judgment and in Support of Defendant's Motion for Summary Judgment and annexed exhibits.