Opinion
# 2020-053-503 Claim No. 133106 Motion No. M-94598
01-03-2020
PETER VON STACKELBERG v. ALFRED STATE COLLEGE OF TECHNOLOGY - STATE UNIVERSITY OF NEW YORK
HOUSH LAW OFFICES, PLLC BY: Frank Housh, Esq. HON. LETITIA JAMES New York State Attorney General BY: Wendy E. Morcio, Esq. Assistant Attorney General
Synopsis
By Order to Show Cause, the Court required the parties to submit statements regarding the service of this claim. Because of discrepancies in the affidavits presented by the parties, a hearing was conducted by the Court to take testimony on this issue. After conducting the hearing, it was established that service was made on the Attorney General's Office and the Order to Show Cause was vacated.
Case information
| UID: | 2020-053-503 |
| Claimant(s): | PETER VON STACKELBERG |
| Claimant short name: | VON STACKELBERG |
| Footnote (claimant name) : | |
| Defendant(s): | ALFRED STATE COLLEGE OF TECHNOLOGY - STATE UNIVERSITY OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 133106 |
| Motion number(s): | M-94598 |
| Cross-motion number(s): | |
| Judge: | J. DAVID SAMPSON |
| Claimant's attorney: | HOUSH LAW OFFICES, PLLC BY: Frank Housh, Esq. |
| Defendant's attorney: | HON. LETITIA JAMES New York State Attorney General BY: Wendy E. Morcio, Esq. Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | January 3, 2020 |
| City: | Buffalo |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant Peter Von Stackelberg alleges in claim no. 133106 that he was overlooked by Alfred State College of Technology (Alfred) for several adjunct teaching positions and was actually or constructively terminated from his employment at Alfred in violation of New York State Executive Law § 296. Claim no. 133106 was filed on May 17, 2019. The claim was not accompanied by an affidavit of service and proof of service of the claim upon the Attorney General has still not been filed with the Clerk of the Court of Claims (see 22 NYCRR 206.5 [a]). No answer to the claim was filed raising further questions regarding service of the claim upon the Attorney General. By Order to Show Cause (OTSC) dated September 18, 2019, this Court ordered the parties to submit statements regarding the service of claim no. 133106 on the Attorney General in compliance with Court of Claims Act §§ 10 and 11.
In order to commence an action in the Court of Claims, a claim must be filed and a copy served upon the Attorney General personally or by certified mail, return receipt requested (Court of Claims Act § 11 [a] [i]). The service requirements of the Court of Claims Act are jurisdictional in nature and must be strictly construed (Dreger v New York State Thruway Auth., 81 NY2d 721 [1992]; Finnerty v New York State Thruway Auth., 75 NY2d 721 [1989]). The failure to comply with the service requirements of the Court of Claims Act deprives the Court of jurisdiction, requiring dismissal of the claim (Ivy v State of New York, 27 AD3d 1190 [4th Dept 2006]; Hodge v State of New York, 213 AD2d 766 [3d Dept 1995]).
In response to the Court's Order to Show Cause, Assistant Attorney General Wendy E. Morcio submitted an affidavit of Debra L. Mantell, a Legal Assistant II in the Albany, New York Office of the Attorney General (Defendant's Exhibit A). According to Ms. Mantell, a search of the Attorney General's digital case management system was conducted after receiving a letter from the Court dated May 23, 2019, advising that a claim regarding this matter had been filed on May 17, 2019. This search found no record that this claim had been served upon the Attorney General.
On or about June 3, 2019, the Attorney General's Office requested a copy of the filed claim referenced in the Court's May 23, 2019 letter. According to Ms. Mantell's affidavit, a second search of the digital case management system was conducted after receiving a copy of the filed claim and, once again, this second search failed to disclose any record to show that the Attorney General's Office had received a notice of intention to file a claim and/or a claim by Peter Von Stackelberg alleging unlawful employment practices and age discrimination.
On November 13, 2019, claimant's counsel, Frank Housh, Esq., filed a response to the Court's Order to Show Cause. In his affidavit, Mr. Housh stated that the claim was served on the Attorney General's Office in Buffalo, New York on May 19, 2019 "without receipt of documentation proving service that day." Mr. Housh's affidavit further stated that the claim was again personally served on the same Attorney General's Office on October 30, 2019. Attached to his affidavit as Exhibit B was a copy of the claim which had been stamped by the Attorney General's Office as being received on October 30, 2019 from Kristen Anderson, a Legal Assistant in the Housh Law Offices. Also attached to Mr. Housh's affidavit as Exhibits A and C, respectively, were affidavits of personal service by Kristen Anderson on the Attorney General's Office on May 19, 2019 (Claimant's Exhibit A) and on October 30, 2019 (Claimant's Exhibit C). Both of these affidavits of service were notarized on November 13, 2019.
According to Ms. Anderson's first affidavit of service (Claimant's Exhibit A), she hand carried one copy of the claim and gave it to a man "sitting at the window" at the Attorney General's Office in Buffalo, New York on May 19, 2019. She allegedly left the Attorney General's Office without documentation proving service (see ¶ 5 of the affidavit of Frank Housh, Esq. sworn to November 13, 2019). According to Ms. Anderson's second affidavit of service (Claimant's Exhibit C), she hand delivered a copy of the claim to the Attorney General's Office on October 30, 2019. A copy of the claim was stamped received from Kristen Anderson on October 30, 2019 (Claimant's Exhibit B).
Because of the discrepancies in the affidavits presented by the parties, this Court scheduled a hearing for December 12, 2019 to hear testimony on the issue of service of the claim. The first witness to testify was Kristen Anderson of the Housh Law Offices. Ms. Anderson testified that she hand delivered the claim to the person at the window at the Office of the Attorney General in Buffalo on October 30, 2019, about a month after the Court issued its Order to Show Cause. On cross-examination by defendant's counsel, Ms. Anderson admitted that her initial affidavit of service (Claimant's Exhibit A) indicated that the claim was served on May 19, 2019. After being shown a calendar of the month of May, 2019, Ms. Anderson admitted that the alleged date of service, May 19, 2019, as contained in her affidavit of service was a Sunday and that she was aware that the Attorney General's Office was not open on a Sunday. On re-direct, she testified that the date of service of May 19, 2019 was a possible error.
The next witness to testify was Erika Piacente of the Attorney General's Office. Ms. Piacente testified as to the policy and procedures utilized by the Attorney General's Office when a document is hand delivered to the Buffalo Regional Office. These procedures are written on a placard on the wall in the Buffalo Attorney General's Office. According to Ms. Piacente, a log book for pleadings received by personal service is filled out whenever a notice of intention, claim, motion or summons is served on the Attorney General's Office. The log book for personal service indicated that at 1:13 p.m. on October 30, 2019, a notice of claim on behalf of Peter Von Stackelberg was served on the Buffalo Attorney General's Office. Two pages from the log book of personal service for the dates beginning on May 10, 2019 and ending on May 28, 2019 were marked as Defendant's Exhibit E. These pages from the log, however, failed to indicate that any pleading was hand-delivered to the Buffalo Attorney General's Office on behalf of Mr. Von Stackelberg during this 18 day period of time when claimant alleges his claim was initially served.
Marked as Defendant's Exhibit D was one page from the log of general mail received by personal delivery by the Attorney General's Office for the dates beginning on May 14, 2019 and ending on May 21, 2019. Nothing on this page indicates that anything was delivered to the Attorney General's Office on behalf of Mr. Von Stackelberg during this eight day period of time during which claimant alleges that his claim was initially served upon the Attorney General's Office.
Once service is challenged, the burden rests with the claimant to establish proper service by a preponderance of the credible evidence (Caci v State of New York, 107 AD3d 1121 [3d Dept 2013]). Here, the alleged service on May 19, 2019 is being challenged. Unfortunately, the affidavit of a May 19, 2019 service is defective. It was notarized on November 13, 2019, approximately six months after the alleged May 19, 2019 service occurred, it references to service on a Sunday when the Attorney General's Office is closed, and it fails to identify or describe the person served as required by CPLR 306 (b) (Negron v State of New York, 257 AD2d 652 [2d Dept 1999]). Further, there is no reference to a May 19, 2019 service in the log books of the Attorney General's Office in Buffalo. Based on the affidavits presented in response to the Court's Order to Show Cause, the exhibits attached thereto, and the testimony and exhibits produced during the December 12, 2019 hearing, the Court concludes that claimant has failed to meet his burden of proving personal service of the claim upon the Attorney General on May 19, 2019. Accordingly, the alleged May 19, 2019 attempted service of process is deemed invalid.
After this Court issued its Order to Show Cause, however, claimant served a copy of the claim upon the Attorney General's Office in Buffalo on October 30, 2019. During the hearing, defendant's counsel conceded that a copy of the claim was personally served on October 30, 2019. Ms. Anderson's testimony at the December 12, 2019 hearing and claimant's copy of the claim indicating that the claim was received by the Attorney General's Office on October 30, 2019 (Claimant's Exhibit B), confirmed that the claim was served on the Attorney General's Office on October 30, 2019. As the claim has now been served, the Order to Show Cause (Motion no. M- 94598) is vacated.
January 3, 2020
Buffalo, New York
J. DAVID SAMPSON
Judge of the Court of Claims The following were read and considered by the Court: 1. Order to Show Cause dated September 18, 2019; 2. Affidavit of Assistant Attorney General Wendy E. Morcio sworn to October 16, 2019, with annexed Exhibit A; 3. Affidavit of Frank Housh, Esq. sworn to November 13, 2019, with annexed Exhibits A-C; and 4. Defendant's Exhibits D and E received into evidence at the December 12, 2019 hearing.