Opinion
# 2014-039-426 Claim No. 123896 Motion No. M-85139
08-22-2014
KELEIK WATERS v. STATE OF NEW YORK
Keleik Waters, pro se Hon. Eric T. Schneiderman Attorney General of the State of New York By: Paul F. Cagino Assistant Attorney General
Synopsis
Claim is dismissed on the Court's motion (Order to Show Cause). Claimant has failed to sustain his 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: | 2014-039-426 |
| Claimant(s): | KELEIK WATERS |
| Claimant short name: | WATERS |
| Footnote (claimant name) : | |
| Defendant(s): | STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 123896 |
| Motion number(s): | M-85139 |
| Cross-motion number(s): | |
| Judge: | James H. Ferreira |
| Claimant's attorney: | Keleik Waters, pro se |
| Defendant's attorney: | Hon. 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: | August 22, 2014 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant Keleik Waters, an inmate proceeding pro se, filed this claim with the Chief Clerk of the Court of Claims on February 6, 2014. No affidavit of service of the claim upon the Attorney General's Office (see 22 NYCRR § 206.5 [a]) or answer has been filed in this action.
By Order to Show Cause filed May 27, 2014, the Court noted that claimant may have failed to comply with the service requirements of Court of Claims Act § 11 (a) in instituting this action and ordered claimant to show cause why the claim should not be dismissed for failure to serve the claim upon the Attorney General. Claimant was 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 made returnable on July 2, 2014 and was served upon the parties on May 27, 2014. It was mailed to claimant by regular mail at his last known address at Gouverneur Correctional Facility in Gouverneur, New York and was not returned to the Court. To date, claimant has not responded to the Order to Show Cause.
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. She states that, based upon her review of the paper and electronic 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 ¶ 4).
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]; Rodriguez v State Of New York, 307 AD2d 657, 657 [3d Dept 2003]). 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 claimant has failed to sustain his burden of proving that the claim was properly served upon the Attorney General, as he has 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. 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 claimant 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. 123896 is dismissed.
August 22, 2014
Albany, New York
James H. Ferreira
Judge of the Court of Claims
Papers Considered:
1. Order to Show Cause, filed May 27, 2014; and
2. Affidavit in Response by Janet Barringer, sworn to June 30, 2014.