Opinion
# 2011-040-071 Claim No. 118043-A Motion No. M-80443
12-07-2011
YATES v. THE STATE OF NEW YORK
Synopsis
Court's Order to Show Cause regarding service of Claim vacated. Case information
UID: 2011-040-071 Claimant(s): PHILLIP YATES Claimant short name: YATES Footnote (claimant name) : Defendant(s): THE STATE OF NEW YORK Footnote (defendant Caption amended to reflect the State of New York as name) : the proper defendant. Third-party claimant(s): Third-party defendant (s): Claim number(s): 118043-A Motion number(s): M-80443 Cross-motion number(s): Judge: CHRISTOPHER J. McCARTHY Claimant's attorney: Phillip Yates, Pro Se ERIC T. SCHNEIDERMAN Defendant's attorney: Attorney General of the State of New York By: Joel L. Marmelstein, Esq., AAG Third-party defendant's attorney: Signature date: December 7, 2011 City: Albany Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
By Order to Show Cause returnable November 23, 2011, the Court noted that Claimant may have failed to comply with the service requirements of § 11 of the Court of Claims Act. Claimant was ordered to submit a written statement evidencing service of the Claim. The instant Claim was filed with the Clerk of the Court on February 18, 2010.
In response to the Order to Show Cause, Claimant submitted an affidavit with several exhibits attached.
Defendant submitted an affirmation of counsel in which he states that the Attorney General has no record of receiving a Claim from Mr. Yates (Affirmation of Joel L. Marmelstein, Esq., ¶ 7).
The Court has reviewed the Court's file regarding this Claim. It appears that, on February 18, 2010, the Clerk's office received an envelope from Claimant containing a motion and a claim. There was also an affidavit of service stating that a motion and a claim were served upon the Attorney General which was attached to the claim. The motion was determined to be one seeking permission to file a late claim pursuant to Court of Claims Act § 10(6). The motion was assigned to Judge Norman I. Siegel and was opposed by the Attorney General. Judge Siegel rendered a decision and order denying Mr. Yates motion on the basis that Mr. Yates failed to establish that his proposed claim had the appearance of merit (Yates v State of New York, Claim No. None, Motion No. M-77854, Siegel, J., July 15, 2010 [UID 2010-042-516]).
It is clear to the Court that Mr. Yates filed a Claim with the Clerk of the Court on February 18, 2010. He also filed an affidavit of service stating that the Claim was served upon Defendant. In addition, by letter dated March 23, 2010, both Mr. Yates and the Attorney General were advised that the Clerk of the Court had received a Claim from Mr. Yates on February 18, 2010 and that it had been filed and assigned Claim No. 118043-A. In this instance, confusion was created because one claim was included in the envelope that was received on February, 18, 2010 and that claim was filed and also attached to the motion as a proposed claim.
Defendant asserts that it was not served with this Claim, although it has not included an affidavit from a person with knowledge of the practices in the Attorney General's office regarding the recording and filing of such claims.
As Claimant has provided proof of service of the Claim, the Order to Show Cause is vacated. As there has been a great deal of confusion surrounding this matter, the Court directs that Defendant serve and file a Verified Answer to this Claim or, in the alternative, a pre-Answer motion to dismiss, in either case within forty (40) days from the date of filing of this Decision and Order.
December 7, 2011
Albany, New York
CHRISTOPHER J. McCARTHY
Judge of the Court of Claims
The following papers were read and considered by the Court:
Papers Numbered
Order to Show Cause 1
Claimant's Affidavit in Opposition & Exhibits attached 2
Defendant's Affirmation in Opposition & Exhibits attached 3
Filed Papers: Claim