The claim is dismissed for failure to comply with the service requirement of Court of Claims Act § 11.
|Claimant short name:||OK|
|Footnote (claimant name) :|
|Defendant(s):||RALPH J. VIOLA|
|Footnote (defendant name) :|
|Judge:||JUDITH A. HARD|
|Claimant's attorney:||Injo Ok, Pro Se|
|Defendant's attorney:||Hon. Eric T. Schneiderman, NYS Attorney General
By: Paul F. Cagino, Assistant Attorney General,
|Third-party defendant's attorney:|
|Signature date:||December 7, 2017|
|See also (multicaptioned case)|
On February 1, 2017, claimant, proceeding pro se, filed a claim with the Clerk of the Court seeking damages for a contractor's failure to complete construction work at claimant's home. Claimant did not file an Affidavit of Service. On its own motion, the Court issued an Order to Show Cause, dated August 22, 2017 and filed on August 28, 2017, directing claimant to demonstrate why the claim should not be dismissed for lack of jurisdiction for failure to comply with the service requirements of Court of Claims Act § 11. The Order to Show Cause was served upon claimant by e-filing, in accordance with the directives of that Order. As of the date of this Decision and Order, claimant has not responded to the Order to Show Cause and issue has not been joined in the action.
"A claimant seeking to recover damages for personal injuries caused by the negligence, intentional tort or unintentional tort of an officer or employee of the State must file and serve a claim or, alternatively, a notice of intention to file such a claim, upon the Attorney General within 90 days after the accrual thereof" (Maude V. v New York State Off. of Children & Family Servs., 82 AD3d 1468, 1469 [3d Dept. 2011]; see Court of Claims Act § 10 , [3-b]). Court of Claims Act § 11 (a) (i) provides that a "claim shall be filed with the clerk of the court; and . . . a copy 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." "[A]s suits against defendant are permitted only by virtue of its waiver of sovereign immunity and are in derogation of the common law, the failure to strictly comply with the filing or service provisions of the Court of Claims Act divests the court of subject matter jurisdiction and compels dismissal of the claim" (Caci v State of New York, 107 AD3d 1121, 1122 [3d Dept. 2013] [internal quotation marks and citations omitted]; see Finnerty v New York State Thruway Auth., 75 NY2d 721, 722-723 ; Rodriguez v State of New York, 307 AD2d 657, 657 [3d Dept. 2003]). Once challenged, the burden is upon the claimant to establish proper service by a preponderance of the credible evidence (see Caci v State of New York, 107 AD3d at 1124; Boudreau v Ivanov, 154 AD2d 638, 639 [2d Dept. 1989]; Aquila v Aquila, 129 AD2d 544, 545 [2d Dept. 1987]).
In response to the Court's Order to Show Cause, defendant has submitted an affidavit sworn to by Debra Mantell, Legal Assistant II in the Office of the Attorney General in Albany, New York, whose job duties require her to be familiar with the office's record keeping system (Exhibit A). Mantell avers that, upon a search of the office's computer filing system, she found a letter from the Court of Claims acknowledging receipt of the instant claim, dated February 27, 2017, but did not find "any record that the Attorney General had received the filed document to which the letter refers" (Mantell Aff., ¶ 5). Upon receiving a copy of the filed claim from the NYSCEF system, a second search was performed. (Mantell Aff., ¶ 7). Mantell states that she found "no record that the Attorney General received a document and/or letter from Injo Ok, for an incident that occurred in 2015 as to patio work to be completed" (Mantell Aff., ¶ 8).
The Court finds that defendant has set forth sufficient probative facts showing that the claim was not served upon defendant by submitting the sworn statement of Debra Mantell, which states that two separate reviews of the Office of the Attorney General's records failed to locate either a claim in this matter (Mantell Aff., ¶¶ 5, 8). Because claimant has offered no evidence to dispute defendant's assertion that the claim was not properly served upon the Attorney General, the Court finds that claimant has failed to meet his burden of establishing proper service (see Court of Claims Act § 11 [a] [i]; Caci v State of New York, 107 AD3d at 1123-1124; Allen v State of New York, UID No. 2002-028-014 [Ct Cl, Sise, J., Mar. 21, 2002]). Accordingly, the claim must be dismissed (see Finnerty v New York State Thruway Auth., 75 NY2d at 723).
Based upon the foregoing, it is hereby
ORDERED, that the Court's motion (M-90957) is GRANTED and the claim (No. 129251) is DISMISSED.
December 7, 2017
Albany, New York
JUDITH A. HARD
Judge of the Court of Claims
1. Claim, filed on February 1, 2017.
2. Order to Show Cause, dated August 22, 2017; and Affirmation in Response to the Court's Order to Show Cause, affirmed by Paul F. Cagino, AAG, on September 11, 2017, with Exhibit A annexed thereto.