Defendant's cross motion to dismiss the claim for lack of service upon Attorney General granted. Claimant's affidavit of service did not demonstrate that claim was mailed by CMRRR, and thus presumption of proper service did not arise. Defendant demonstrated prima facie lack of service, which was not rebutted by claimant.
|Claimant short name:||RUFUS|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||W. BROOKS DeBOW|
|Claimant's attorney:||LESTER RUFUS, Pro se|
|Defendant's attorney:||ERIC T. SCHNEIDERMAN, Attorney General
of the State of New York
By: Heather R. Rubinstein, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||January 31, 2018|
|See also (multicaptioned case)|
Claimant, an individual incarcerated in a State correctional facility, has filed this claim in which he alleges he was wrongfully confined and deprived of due process relating to defendant's negligent confinement of him in the Green Haven Correctional Facility Special Housing Unit for 45 days. Claimant moves for judgment on the ground that defendant defaulted in answering the claim (M-91083). Defendant opposes the motion and cross-moves for dismissal of the claim on jurisdictional grounds due to claimant's failure to serve the claim upon the Attorney General (CM-91249). Claimant opposes defendant's cross motion.(1)
Defendant's cross motion to dismiss the claim will be considered first, as it addresses the Court's jurisdiction to entertain the claim. Court of Claims Act § 11 (a) (i) requires that a claim such as this be served upon the Attorney General. It is well established that the filing and service requirements of the Court of Claims Act are jurisdictional in nature, and that the failure to timely serve the claim upon the Attorney General deprives the Court of subject matter jurisdiction (see Finnerty v New York State Thruway Auth., 75 NY2d 721, 722-723 ; Matter of Dreger v New York State Thruway Auth., 177 AD2d 762, 762-763 [3d Dept 1991], affd 81 NY2d 721 ; Locantore v State of New York, UID No. 2009-038-517 [Ct Cl, DeBow, J., Feb. 11, 2009]).
In support of its cross motion, defendant submits an affidavit of Cynthia Watson, an employee of the Claims Bureau of the Office of the Attorney General, who avers that "[i]t is the practice of the Claims Bureau to record on the Bureau's computer filing system all documents, including Notices of Intent to File Claims, Claims and Motions served on the Attorney General" (Rubinstein Affirmation, Exhibit B [Watson Affidavit, ¶ 2]). Watson further avers that she "conducted a thorough search of the computer filing system of the Office of the Attorney General, Claims Bureau, to determine whether any documents have been served on the Office of the Attorney General" in connection with this claim (see id., ¶ 3), and that the only related document in the Attorney General's computer filing system was an item of correspondence from the Clerk of the Court of Claims acknowledging receipt and filing of this claim on December 29, 2016 (see id., ¶ 4 [A]). Watson asserts that there is no record that the claim or a notice of intention to file a claim was ever served on the Attorney General (see id., ¶ 6). Claimant argues in opposition to the cross motion that the claim was served by mail on June 28, 2016 when he gave the claim to correction officials and that service of the claim was complete upon mailing (Rufus Affidavit, ¶ 6-2#). Claimant further argues that defendant had notice of the claim inasmuch as the Chief Clerk of the Court sent correspondence to the Office of the Attorney General dated January 13, 2017 notifying it that the claim had been filed.
Claimant's affidavit of service, which is appended to the filed claim, states that he delivered a sealed envelope that contained the claim "to the prison authorities according to the established procedures for mailing such items, addressed to the proper mailing address" of the Attorney General. The generally applicable "mailbox" rule that service of papers by mail is complete by simply mailing papers to a party's attorney (see CPLR 2103 [b]) does not apply to this claim, as the Court of Claims Act requires that service of a claim by mail shall be accomplished by certified mail, return receipt requested (CMRRR) and that "[s]ervice by [CMRRR], upon the attorney general shall not be complete until the claim or notice of intention is received in the office of the attorney general" (Court of Claims Act § 11 [a] [I] [emphasis added]). "Although a proper affidavit of service raises a presumption of proper service" (Lee v State of New York, UID No. 2015-018-624 [Ct Cl, Fitzpatrick, J., June 4, 2015), claimant's affidavit of service does not aver that the service was made by CMRRR, and thus does not create a presumption of proper service because it does not demonstrate that service was made in "an authorized manner" (CPLR 306 [a]). Watson's sworn denial of service demonstrates prima facie that the Attorney General was not served with the claim, and claimant has not submitted a CMRRR green card receipt or other evidence demonstrating that the claim was received by the Attorney General and thus, defendant's prima facie demonstration of lack of service of the claim upon the Attorney General has not been rebutted. Accordingly, defendant's cross motion to dismiss the claim as jurisdictionally defective due to the failure to serve the Attorney General must be granted.
In light of the dismissal of the claim on jurisdictional grounds, claimant's motion is moot and need not be addressed.
Accordingly, it is
ORDERED, that defendant's cross motion number CM-91249 is GRANTED and claim number 129011 is hereby DISMISSED; and it is further
ORDERED, that claimant's motion number M-91083 is DENIED.
January 31, 2018
Saratoga Springs, New York
W. BROOKS DeBOW
Judge of the Court of Claims
(1) Claim number 129011, filed December 29, 2016;
(2) Affidavit of Service of Lester Rufus, sworn to June 28, 2016;
(3) Notice of Motion (M-91083), dated and sworn to September 13, 2017;
(4) Affidavit of Lester Rufus of Facts Upon Application for Default Judgment, sworn to
September 13, 2017, with Attachments;
(5) Correspondence of Heather R. Rubinstein, AAG, dated October 2, 2017;
(6) Correspondence of Nancy Schulman, Principal Law Clerk, dated October 3, 2017;
(7) Notice of Cross Motion to Dismiss (CM-91249), dated October 20, 2017;
(8) Affirmation of Heather R. Rubinstein, AAG, dated October 20, 2017, with Exhibits A-C;
(9) Affirmation of Lester Rufus in Opposition, sworn to October 30, 2017, with Exhibits A-H;
(10) Correspondence of Lester Rufus, dated October 30, 2017, with Attachment (Watson
(11) "So Ordered" Correspondence of the Hon. W. Brooks DeBow, Judge of the Court of
Claims, dated December 22, 2017, with Attachment;
(12) Correspondence of Heather R. Rubinstein, AAG, dated December 27, 2017, with
Attachment (Watson Affidavit);
(13) Affirmation of Lester Rufus in Opposition, sworn to January 8, 2018, with Exhibits A-H.
1. Claimant's objection to a two-week adjournment of the motion return that was granted by chambers upon defendant's request does not persuade the Court will to revisit its prior grant of an adjournment in the absence of argument by claimant that the brief adjournment prejudiced a substantial right.