Opinion
# 2012-049-056 Claim No. 121215 Motion No. M-81987
11-13-2012
LYUBOV YEFIMOVA v. THE STATE OF NEW YORK
Synopsis Case information
UID: 2012-049-056 Claimant(s): LYUBOV YEFIMOVA Claimant short name: YEFIMOVA Footnote (claimant name) : Defendant(s): THE STATE OF NEW YORK Footnote (defendant name) The caption has been amended sua sponte to reflect : the proper defendant. Third-party claimant(s): Third-party defendant(s): Claim number(s): 121215 Motion number(s): M-81987 Cross-motion number(s): Judge: David A. Weinstein Claimant's attorney: Lyubov Yefimova, Pro Se Eric T. Schneiderman, NYS Attorney General Defendant's attorney: By: Joseph L. Paterno, Assistant Attorney General Third-party defendant's attorney: Signature date: November 13, 2012 City: Albany Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
The claim at issue was filed on April 24, 2012. The allegations in it are difficult to understand, but appear to concern a sting by a poisonous mosquito. A document labeled "affidavit of service" is attached to the claim, although it is not notarized. On that document, all boxes regarding method of service are checked, appearing to indicate that the claim was sent to defendant by personal delivery, regular mail, and certified mail, return receipt requested. Defendant did not file an answer.
By Order to Show Cause filed August 10, 2012, this Court directed claimant to show cause why this claim should not be dismissed, and stated that the Attorney General may make any submission it deemed appropriate regarding the Court's jurisdiction over this matter.
Both parties have timely made submissions pursuant to the Court's order. The Attorney General submitted the affidavit of Tasha Hunter-Tabron, a clerk in the Attorney General's Claims Bureau, and the affirmation of Assistant Attorney General Joseph L. Paterno. The former states that Ms. Hunter-Tabron conducted a "thorough search" of the Attorney General's computer filing system, and found no record of this action being served. The latter states that, in the absence of any evidence of service, the claim should be dismissed.
For her part, Yefimova submitted two documents whose meaning is unclear. Appended to one is another affidavit of service, in this case notarized, which indicates that she served the claim by regular and certified mail, return receipt requested (but not by personal service). She provides no evidence or detail about how this was accomplished.
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]; Carchipulla v State of New York, UID No. 2009-030-512 [Ct Cl, Scuccimarra, J., Feb. 27, 2009]; Gagne v State of New York, UID No. 2006-044-005 [Ct Cl, Schaewe, J., Dec. 19, 2006]).
Some caselaw indicates that a claimant may meet this burden through an affidavit of service, and the need to come forward with further evidence is triggered only after the State has rebutted the allegations in the affidavit of service or otherwise objected to the manner of service (
In this case, the State has presented adequate proof, via the affidavit of Ms. Hunter-Tabron, that it was not served with the claim (see Edwards v State of New York, UID No. 2010-039-176 [Ct Cl, Ferreira, J., Feb. 26, 2010] [affidavit attesting that thorough search of files failed to show evidence that claim was served is "sufficient proof" to establish lack of service]). For her part, claimant has failed to present sufficient evidence to rebut this assertion. She has not presented any documentary evidence of appropriate service, such as the return receipt, and the two affidavits of service before me say without explanation that multiple methods of service were used, and contradict one another as to what those methods were. These contradictory documents, without any detail or supporting evidence, are insufficient to meet claimant's burden.
Finally, in light of the State's showing that it was never served, the requirement that it plead improper service as a jurisdictional defense in an answer or raise the defect in a pre-answer motion does not apply (see Dunn v State of New York, UID No. 2000-005-556 [Ct Cl, Corbett, J., Sept. 20, 2000] ["Since issue was never joined, the presentation of the jurisdictional defenses in Court of Claims Act § 11(c) are not implicated"]).
In sum, the Attorney General has submitted sufficient proof to show that it has not been served, and claimant has failed to meet her burden of showing that she has served the claim in accordance with the requirements of the Court of Claims Act.
Accordingly, it is
ORDERED that claim no. 121215 is dismissed.
November 13, 2012
Albany, New York
David A. Weinstein
Judge of the Court of Claims
Papers Considered:
1. Order to Show Cause, filed August 10, 2012.
2. Defendant's Affirmation in response, and annexed Exhibit.
3. Claimant's submission in response.
see Matter of Griffin v Griffin, 215 AD2d 386, 386 [2d Dept 1995] ["Where . . . there is a sworn denial of service by the party allegedly served, the affidavit of service is rebutted and jurisdiction must be established by a preponderance of the evidence . . . ."]; White v State of New York, UID No. 2009-039-140 [Ct Cl, Ferreira, J., Aug. 28, 2009] ["once an objection to the manner of service is raised, claimant has the burden of establishing proper service by a preponderance of the evidence"]; see also Rusch v State of New York, UID No. 2002-030-067 [Ct Cl, Scuccimarra, J., Sept. 3, 2002] [proper affidavit of service is prima facie evidence that defendant was properly served, in absence of sworn denial]). In this case, where the initial affidavit of service is not notarized and is deficient on its face, and the State has presented sworn filings stating that no service was made, the burden is clearly on claimant to show that she properly served defendant.