Opinion
# 2015-049-023 Claim No. 124246 Motion No. M-86017
03-27-2015
ANTHONY STRATI, STAR TRAVEL & TOURS INC., 1124 RT. 104, ONTARIO, NY 14519 v. THE NEW YORK STATE INSURANCE FUND, COMPENSATION DEPARTMENT
Anthony Strati, Pro Se Eric T. Schneiderman, New York State Attorney General By: Joseph L. Paterno, Assistant Attorney General
Synopsis
On the Court's own motion, the claim is dismissed. Claimant failed to sustain his burden of proving the claim was served upon the Attorney General in accordance with Court of Claims Act § 11(a).
Case information
| UID: | 2015-049-023 |
| Claimant(s): | ANTHONY STRATI, STAR TRAVEL & TOURS INC., 1124 RT. 104, ONTARIO, NY 14519 |
| Claimant short name: | STRATI |
| Footnote (claimant name) : | |
| Defendant(s): | THE NEW YORK STATE INSURANCE FUND, COMPENSATION DEPARTMENT |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 124246 |
| Motion number(s): | M-86017 |
| Cross-motion number(s): | |
| Judge: | DAVID A. WEINSTEIN |
| Claimant's attorney: | Anthony Strati, Pro Se |
| Defendant's attorney: | Eric T. Schneiderman, New York State Attorney General By: Joseph L. Paterno, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | March 27, 2015 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Pro se claimant Anthony Strati filed a claim with this Court on April 21, 2014, alleging that an audit revealed on June 28, 2012 that his company, Star Travel & Tours, Inc., had been overcharged $5000 by the New York State Insurance Fund ("NYSIF"), and that efforts to have the money returned were of no avail. The claim does not include an affidavit of service. Among its many exhibits is a certified mail, return receipt dated February 15, 2014, which appears to reflect a mailing to Rochester but has no address. Neither the State of New York, NYSIF, nor any other entity has filed an answer.
The caption also names Star Travel & Tours, Inc. ("Star") as a claimant. Since Star appears to be a corporation, it cannot generally appear through a non-attorney proceeding pro se (see CPLR 321[a] ["a corporation or voluntary association shall appear by attorney," except in certain limited circumstances not applicable here]; BiLello v Genesis Seafood, Inc., 28 AD3d 412, 412 [2d Dept 2006] [non-attorney has "no authority" to file motion for corporate defendant]; Evans v Conley, 124 AD2d 981, 982 [4th Dept 1986], appeal dismissed 69 NY2d 822 [1987] [appearance by president on corporation's behalf was a "nullity"]). In light of the dismissal of the action, I need not address this issue.
By Order to Show Cause ("OTSC") (M-86017) dated December 4, 2014, the Court directed claimant to show cause why this claim should not be dismissed for failure to comply with the service requirements of Court of Claims Act § 11(a), and stated that the Attorney General could make any submission it deemed appropriate regarding the Court's jurisdiction over this matter.
On January 16, 2015, Strati submitted a copy of the Order to Show Cause with a copy of a certified mail receipt, for which a return receipt was purchased (although no return receipt is appended to the submission). The submission also included the sales receipt for the mailing, and a sticky note that reads in pertinent part as follows: "Enclosed is the proof of complaint to the Attorney General's office. This is what I was told to do by your office to show cause. I hope this is all you need. Please call if it isn't . . . ." The certified mail had been addressed to the Bureau of Consumer Frauds at the Albany Office of the Attorney General ("OAG"), and appended to a copy of the receipt was a complaint form for that bureau, stating that Strati had "overpaid" NYSIF for his business.
On January 26, 2015, the State filed an affirmation by Assistant Attorney General Joseph Paterno, and the affidavit of Min Chul Rhee, a clerk in the OAG's Claims Bureau. Rhee stated that a search of the OAG's records in regard to this claim revealed only a letter from the Clerk of this Court, noting that the action had been filed. She also states that an e-mail dated January 12, 2015 to all Assistant Attorneys General in offices in New York City, its suburbs, and Albany, received no response indicating that any office had been served with the claim (Rhee Aff. ¶ 5). 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]).
Here, there is ample evidence that the claim was not properly served at the time it was filed. There was no certificate of service, the certified mail receipt accompanying the claim pre-dated its filing by over two months, and the Rhee affidavit demonstrates that the OAG was not served prior to January 2015.
Claimant has sought to cure this defect, apparently by sending a "complaint" by certified mail, return receipt requested to the OAG. But it appears from the face of that submission that the complaint served was not the claim earlier filed with this Court, but rather a complaint on a form used by the OAG itself. The service of an entirely different document from the filed claim does not constitute proper service (see Jordan v State of New York, UID No. 2011-049-008 [Ct Cl, Weinstein, J., Sept. 6, 2011] [service not properly effectuated where filed and served pleadings "bear[ ] no resemblance" to one another]).
It is clear that the claimant pro se is trying to comply with the Court's rules, but has been stymied by certain errors in this regard. While I am sympathetic to his efforts, I am bound by the jurisdictional rules regarding proper service. Moreover, I note that based on the accrual date listed in the claim, it appears that the action is untimely as well.
For these reasons, claim no. 124246 is hereby dismissed.
March 27, 2015
Albany, New York
DAVID A. WEINSTEIN
Judge of the Court of Claims
Papers Considered:
1. The Court's Order to Show Cause, dated December 4, 2014.
2. Claimant's submission to the Court, received stamped January 16, 2015.
3. Defendant's Affirmation with annexed exhibit.