Opinion
# 2014-039-409 Claim No. 122776 Motion No. M-84402
05-16-2014
ANTHONY TRIMBLE, SR. and ANTHONY TRIMBLE, JR. v. STATE OF NEW YORK
Anthony Trimble, Sr., pro se Anthony Trimble, Jr., pro se Hon. Eric T. Schneiderman Attorney General of the State of New York By: Paul Cagino Assistant Attorney General
Synopsis
Claim is dismissed on the Court's motion (Order to Show Cause). Claimants have failed to sustain their burden of proving that the claim was properly served upon the Attorney General. Defendant has demonstrated that the claim was not, in fact, served upon the Attorney General.
Case information
| UID: | 2014-039-409 |
| Claimant(s): | ANTHONY TRIMBLE, SR. and ANTHONY TRIMBLE, JR. |
| Claimant short name: | TRIMBLE |
| Footnote (claimant name) : | |
| Defendant(s): | STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 122776 |
| Motion number(s): | M-84402 |
| Cross-motion number(s): | |
| Judge: | James H. Ferreira |
| Claimant's attorney: | Anthony Trimble, Sr., pro se Anthony Trimble, Jr., pro se |
| Defendant's attorney: | Hon. Eric T. Schneiderman Attorney General of the State of New York By: Paul Cagino Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | May 16, 2014 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimants Anthony Trimble, Sr., and Anthony Trimble, Jr., proceeding pro se, filed this claim with the Chief Clerk of the Court of Claims on May 28, 2013. Claimants appended an affidavit of service to their claim indicating service of the claim upon the Clerk of the Court of Claims, but not upon the Attorney General. No answer has been filed in this action.
By Order to Show Cause filed December 19, 2013, the Court noted that claimants may have failed to comply with the service requirements of Court of Claims Act § 11 (a) in instituting this action and ordered claimants to show cause why the claim should not be dismissed for failure to serve the claim upon the Attorney General. Claimants were ordered to submit to the Court, in writing, a statement relating to service of the claim and affidavits establishing personal service or a copy of the certified mail, return receipts evidencing proper service by that alternative method.
The Order to Show Cause was originally returnable on February 5, 2014. On February 4, 2013, the Court granted claimants' request for an adjournment of the return date of the Order to Show Cause, until April 2, 2014.
In response to the Order to Show Cause, claimant Anthony Trimble, Sr., asserts that he served three "Notice[s] of Intent" upon the Attorney General at 1 West Street in Mineola, New York (Trimble letter, dated January 28, 2014). Trimble further states that the Attorney General's Office did not return his notices and he therefore assumed that he had served the Attorney General at the right location. Trimble requests an opportunity to re-serve the "notice of intent" if the Court finds that he sent it to the wrong office. Trimble has attached to his response, among other things, three certified mail, return receipts indicating that he mailed parcels to the County Attorney, Nassau County, at 1 West Street, Executive Building, Mineola, New York 11501.
In response to the Court's order, defendant has submitted the affidavit of Janet Barringer, a senior clerk at the Albany Office of the Attorney General and a person who is familiar with the record keeping system at the Attorney General's Office regarding claims that are filed in the Court of Claims or received by that office. Barringer states that she searched the electronic database by claimants' name, spelled either Trimble or Tremble. She states that, based upon her review of the files in the Office of the Attorney General, she "find[s] no record that the [c]laim in this matter was ever served on the Attorney General" (Barringer Affidavit ¶ 5).
Claimants' last name is misspelled on the caption of the Court's Order to Show Cause. The caption has been corrected to reflect the correct spelling of claimants' last name.
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Court of Claims Act § 11(a) (i) provides 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." The service requirements set forth in the Court of Claims Act are jurisdictional in nature and therefore must be strictly construed (see Finnerty v New York State Thruway Auth., 75 NY2d 721, 722-723 [1989]). The burden of establishing proper service of the claim is on the claimant (see Boudreau v Ivanov, 154 AD2d 638, 639 [2d Dept 1989]; Gagne v State of New York, 14 Misc 3d 1214 [A] [Ct Cl 2006]).
The Court finds that claimants have failed to sustain their burden of proving that the claim was properly served upon the Attorney General, as they have failed to submit an affidavit establishing personal service on the Attorney General or a copy of the certified mail, return receipts evidencing proper service by that alternative method. As noted above, the certified mail, return receipts submitted by claimants reflect that a parcel was mailed to the Nassau County Attorney, not the Attorney General's Office. Moreover, the affidavit of service that is appended to the claim indicates that claimants mailed a copy of the claim to the Clerk of the Court of Claims and is insufficient to establish proper service on the Attorney General. In opposition, defendant has submitted an affidavit from a person with personal knowledge indicating that the claim was not, in fact, served upon the Attorney General.
Based upon the foregoing, the Court finds that claimants failed to properly serve this claim upon defendant by one of the authorized methods set forth in Court of Claims Act § 11(a) (i). Inasmuch as the time within which to do so has expired, the claim must be dismissed for lack of jurisdiction. It is ordered that Claim No. 122776 is dismissed.
May 16, 2014
Albany, New York
James H. Ferreira
Judge of the Court of Claims
Papers Considered:
1. Order to Show Cause, filed December 19, 2013; 2. Letter in Response by Anthony Trimble, Sr., dated January 28, 2014, with attached materials; and 3. Affidavit in Response by Janet Barringer, sworn to January 31, 2014.