Opinion
# 2017-038-547 Claim No. 120561 Motion No. M-89756
06-28-2017
AUREL SMITH v. THE STATE OF NEW YORK
AUREL SMITH, Pro se ERIC T. SCHNEIDERMAN, Attorney General of the State of New York By: Paul F. Cagino, Assistant Attorney General
Synopsis
Defendant's motion to renew granted and claim dismissed. Prior order denying motion to dismiss for failure to serve the Attorney General was based upon indicia that the claim had been so served. In support of the motion to renew, defendant demonstrated that it was unknown to defendant that the indicia of service existed and had been filed, and explained why that indicia of service was not credible. Thus, defendant demonstrated new facts that would change the prior determination and a justification for not presenting that fact on the prior motion. Defendant's motion to reargue was denied because defendant's instant motion did not demonstrate that the Court misapprehended any fact that was presented on the prior motion.
Case information
| UID: | 2017-038-547 |
| Claimant(s): | AUREL SMITH |
| Claimant short name: | SMITH |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 120561 |
| Motion number(s): | M-89756 |
| Cross-motion number(s): | |
| Judge: | W. BROOKS DeBOW |
| Claimant's attorney: | AUREL SMITH, Pro se |
| Defendant's attorney: | ERIC T. SCHNEIDERMAN, Attorney General of the State of New York By: Paul F. Cagino, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | June 28, 2017 |
| City: | Saratoga Springs |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant, an individual incarcerated in a state correctional facility, filed this claim on November 7, 2011, seeking compensation for personal property allegedly lost by defendant. Defendant moves to reargue and renew a decision and order of this Court that denied defendant's motion to dismiss the claim for lack of jurisdiction due to non-service of the claim (see Smith v State of New York, UID No. 2016-038-569 [Ct Cl, DeBow, J., Dec. 2, 2016]). Claimant has submitted no papers on the motion.
The initial motion to dismiss the claim that was filed with the Court bore a stamp that indicated that the claim had been served on defendant on September 14, 2011, and annexed to the claim was an affidavit of service sworn to on September 6, 2011 indicating that the claim was served on the Attorney General (see id.). In support of its motion for reargument and renewal, defendant submits the affirmation of Paul F. Cagino, AAG, who avers that upon receipt of the Court's decision and order, the Office of the Attorney General (OAG) contacted the Court of Claims and obtained a copy of the filed claim that bore the internal OAG reference number 11-132591 and was able to determine the following. On September 14, 2011 claimant served on defendant a claim that was given internal OAG referenced number 11-132591, and on that same date that claim was filed in the Court of Claims, and was assigned claim number 120356 by the Clerk of the Court of Claims (see Cagino Affirmation, ¶ 4, Exhibit A-B). On or about October 19, 2011 defendant moved to dismiss claim number 120356 on the ground that it was not properly served, appending to the motion a copy of the claim that was served on it that bore internal OAG reference number 11-132591 (id., ¶¶ 6,8). By decision and order dated February 28, 2012, the Honorable Judith A. Hard, Judge of the Court of Claims, granted defendant's motion and dismissed claim number 120356 (id., ¶ 7, Exhibit C; see also, Smith v State of New York, UID No. 2012-032-001 [Ct Cl, Hard, J., Feb. 28, 2012]). Cagino avers that "[f]or reasons unknown, the Claimant took a copy of the Defendant's copy of the claim, that was Exhibit 'A' to the October 11, 2011 Motion to Dismiss and re-filed it with the Court of Claims," and that claim was assigned claim number 120561 by the Clerk of the Court of Claims (see Cagino Affirmation, ¶ 8 [emphasis in original]). Cagino avers that while the OAG was served (albeit improperly) with a copy of the claim that was assigned claim number 120356, defendant was never served with the claim that was assigned claim number 120561 (see id., ¶ 11). Cagino further avers that because claim number 120561 was never served on the OAG and because claimant submitted no papers in opposition to its motion to dismiss this claim, defendant "had no knowledge that the Court was in receipt of a claim that had indicia of previously been received by the [OAG]" (id., ¶ 12).
A motion for leave to reargue is addressed to the discretion of the Court, and such a motion "shall be based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion" (CPLR 2221 [d] [2]; see Schneider v Solowey, 141 AD2d 813 [2d Dept 1988]; Foley v Roche, 68 AD2d 558, 567 [1st Dept 1979]). Defendant's submission does not establish that the Court misapprehended, based upon the record before it on the motion to dismiss, that the claim had been served on defendant, as the filed copy of claim number 120561 bore an OAG stamp and claimant filed an affidavit of service of claim number 120561 upon the OAG. Thus, a question of fact existed as to whether the claim was served on defendant. Defendant's instant submission does not persuade the Court that it misapprehended any fact from the submissions on the motion to dismiss, and that branch of defendant's motion that seeks reargument will be denied.
A motion seeking leave to renew must be based on "new facts not offered on the prior motion that would change the prior determination or shall demonstrate that there has been a change in the law that would change the prior determination" (CPLR 2221 [e] [2]; see Alexy v Stein, 16 AD3d 989, 990 [3d Dept 2005], lv dismissed in part, denied in part 5 NY3d 755 [2005]; Matter of Weinberg, 132 AD2d 190 [1st Dept 1987], lv dismissed 71 NY2d 994 [1988]), and the party seeking permission to renew must present a "reasonable justification for the failure to present such facts on the prior motion" (CPLR 2221 [e] [3]; see Bansbach v Zinn, 20 AD3d 629, 630 [3d Dept 2005]). A new fact came to defendant's attention after the prior motion was decided and that fact - that claimant had merely re-filed a previously filed claim without again serving the claim upon defendant - would change the Court's prior determination. Defendant's submission also demonstrates that claimant submitted no opposition on the prior motion and that defendant was unaware that a claim that bore indicia that it had been served on the OAG had been filed as a new claim, which provides a reasonable justification for failing to provide this information to the Court on the prior motion. Therefore, the Court will grant defendant's motion to renew.
Defendant's submissions on this motion establish that defendant was not served with a copy of the claim that was assigned claim number 120561. Claimant has not responded to this motion or the prior motion, and has therefore failed to submit any proof that claim number 120561 was served on the Attorney General. Inasmuch as the filing and service requirements of the Court of Claims Act are jurisdictional in nature, and the failure to timely serve the claim upon the Attorney General deprives the Court of subject matter jurisdiction (see Finnerty v New York State Thruway Auth., 75 NY2d 721, 722-723 [1989]; Matter of Dreger v New York State Thruway Auth., 177 AD2d 762, 762-763 [3d Dept 1991], affd 81 NY2d 721 [1992]; Locantore v State of New York, UID No. 2009-038-517 [Ct Cl, DeBow, J., Feb. 11, 2009]), the claim must be dismissed.
Accordingly, it is
ORDERED, that defendant's motion number M-89756 is GRANTED IN PART, to the extent that that branch of the motion seeking leave to renew is GRANTED, and upon renewal, the Court's December 2, 2016 Decision and Order is hereby VACATED; and it is further
ORDERED, that claim number 120561 is hereby DISMISSED; and it is further
ORDERED, that defendant's motion number M-89756 is DENIED in all other respects.
June 28, 2017
Saratoga Springs, New York
W. BROOKS DeBOW
Judge of the Court of Claims Papers considered: (1) Claim number 120561, filed November 7, 2011; (2) Notice of Motion, dated January 10, 2017; (3) Affirmation of Paul F. Cagino, AAG, in Support of Motion to Reargue, dated December 10, 2016, with Exhibits A-E; (4) Affidavit of Service of Shannon Folmsbee, sworn to January 10, 2017; (5) Decision and Order in Smith v State of New York, UID No. 2016-038-569 (Ct Cl, DeBow, J., Dec. 2, 2016); (6) Decision and Order in Smith v State of New York, UID No. 2012-032-001 (Ct Cl, Hard, J., Feb. 28, 2012).