Opinion
# 2021-032-005 Claim No. 116019 Motion No. M-95166
01-06-2021
PAUL F. SMITH v. STATE OF NEW YORK
Paul F. Smith, Pro Se Hon. Letitia James, Attorney General By: Ray A. Kyles, AAG
Synopsis
The claim is dismissed for failure to comply with the service requirement of Court of Claims Act § 11.
Case information
| UID: | 2021-032-005 |
| Claimant(s): | PAUL F. SMITH |
| Claimant short name: | SMITH |
| Footnote (claimant name) : | |
| Defendant(s): | STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 116019 |
| Motion number(s): | M-95166 |
| Cross-motion number(s): | |
| Judge: | JUDITH A. HARD |
| Claimant's attorney: | Paul F. Smith, Pro Se |
| Defendant's attorney: | Hon. Letitia James, Attorney General By: Ray A. Kyles, AAG |
| Third-party defendant's attorney: | |
| Signature date: | January 6, 2021 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
On October 30, 2008, claimant, an inmate proceeding pro se, filed a claim with the Clerk of the Court alleging a cause of action for assault and battery committed at Five Points Correctional Facility. Defendant now moves to dismiss the claim on the ground that the Court lacks jurisdiction over the claim as claimant failed to serve the claim upon the Attorney General pursuant to Court of Claims Act § 11. Claimant has not responded to the motion. For the reasons that follow, the Court grants the unopposed motion and dismisses the claim.
"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 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 support of its motion to dismiss, defendant has submitted an affidavit sworn to by Angel M. Davis, Administrative Specialist II in the Office of the Attorney General (OAG) in Albany, New York, who is familiar with the office's record keeping system (Exhibit B). Davis avers that on July 2, 2008, the OAG received a Notice of Intention to File a Claim from claimant by regular mail (Davis Aff. ¶ 7 [a]). On or about November 18, 2008, the OAG received a letter from the Court of Claims acknowledging receipt of the instant claim (Davis Aff. ¶ 5). Per OAG business practice, a search of the digital case management system was performed in order to locate any record that the Attorney General has received the Claim to which the letter refers (id.). The OAG matched the letter with the Notice of Intention to File a Claim received on July 2, 2008 (id.). On January 3, 2020, the OAG contacted the Clerk of the Court of Claims and requested a copy of the filed document referenced in the Court's November 18, 2008 letter (id. ¶ 6). Upon receipt of a copy of the filed claim in this matter, Davis performed a second search of the OAG's digital case management system (id. ¶ 7). Davis avers that there is "no record that the Attorney General received a . . . by [claimant] for an incident that occurred at Five Points Correctional Facility on or abour September 17, 2008" (id. ¶ 8).
The Affidavit of Service attached to the claim filed with the Court does not state where or to whom claimant mailed the claim. Thus, the Court finds that the filed Affidavit of Service for the instant claim is facially invalid in that it fails to state that where or to whom the claim was mailed (see Allen v State of New York, UID No. 2002-028-014 [Ct Cl, Sise, J., Mar. 21, 2002]). Thus, the Affidavit of Service fails to establish that the instant claim was mailed by certified mail, return receipt requested, rendering the claim jurisdictionally defective (Turley v State of New York, 279 AD2d 819, 819 [3d Dept 2001], lv denied 96 NY2d 708 [2001]). Given that claimant offers no evidence to dispute the assertion that the claim was not properly served upon the Attorney General, the Court finds that claimant has failed to meet their burden of establishing proper service (see Court of Claims Act § 11 [a] [i]; Caci v State of New York, 107 AD3d at 1123-1124). Accordingly, the claim must be dismissed (see Finnerty v New York State Thruway Auth., 75 NY2d at 723; Lewis v Dept. of Corr., UID No. 2018-038-541 [Ct Cl, DeBow, J., Apr. 24, 2018]).
Based upon the foregoing, it is hereby
ORDERED that defendant's motion number M-95166 is granted and claim number 116019 is dismissed.
January 6, 2021
Albany, New York
JUDITH A. HARD
Judge of the Court of Claims Papers Considered: 1. Verified Claim, filed on October 30, 2008. 2. Notice of Motion, dated January 15, 2020; and Affirmation in Support of Motion to Dismiss, affirmed by Ray A. Kyles, AAG on January 15, 2020, with Exhibits A and B annexed thereto.