The claim is dismissed for claimant's failure to serve the claim upon the Attorney General.
|Claimant short name:||MOREHOUSE|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||JUDITH A. HARD|
|Claimant's attorney:||By: Scott Morehouse, Pro Se|
|Defendant's attorney:||Hon. Barbara D. Underwood, Attorney General
By: Ray A. Kyles, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||September 7, 2018|
|See also (multicaptioned case)|
On December 11, 2012, claimant, an inmate proceeding pro se, filed a bailment claim with the Clerk of the Court seeking damages for lost property. The claim was not accompanied by an Affidavit of Service, and proof of service of the claim upon the Attorney General was not filed with the Clerk of the Court (see 22 NYCRR 206.5 [a]). Defendant now moves to dismiss the claim on the grounds that the Court lacks jurisdiction over the claim as claimant failed to serve the claim upon the Attorney General pursuant to Court of Claims Act § 11 (a). Claimant has not responded to the motion. For the reasons that follow, the Court grants the unopposed motion and dismisses the claim.
"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 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]).
Defendant states that it was unaware of the existence of this claim until December 8, 2017, when the Office of the Attorney General (OAG) received a copy of the Court's pro se prison trial calendar stating that this claim was scheduled for trial (Kyles Aff. ¶ 2). Defendant promptly informed the Court that it never received the claim, and that it planned to move for dismissal of the claim. In support of its motion to dismiss, defendant has submitted an affidavit sworn to by Debra L. Mantell, Legal Assistant II in the Claims Bureau of 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 thorough search of the office's filing system, she found a Notice of Intention served on November 2, 2012, and a letter from the Court of Claims acknowledging receipt of the instant claim, dated January 7, 2013 (Mantell Aff. ¶¶ 6, 9 [a]). Mantell further states, however, that she found "no record that the Attorney General was served with a Claim by [claimant] for an incident that occurred on or about July 9, 2012 at Five Points Correctional Facility" (Mantell Aff. ¶ 10; see Verified Claim ¶ 2). Given that claimant offers no evidence to dispute the assertion that the claim was not properly served upon the Attorney General, the Court finds that he 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). Accordingly, the claim must be dismissed (see Finnerty v New York State Thruway Auth., 75 NY2d at 723; Lewis v Dept. of Corr., UID No. 2018-038-541 [Ct Cl, DeBow, J., Apr. 24, 2018]).
Based upon the foregoing, it is hereby
ORDERED that defendant's motion number M-92006 is granted and claim number 122123 is dismissed.
September 7, 2018
Albany, New York
JUDITH A. HARD
Judge of the Court of Claims
1. Verified Claim, filed on December 11, 2012.
2. Notice of Motion to Dismiss Claim, dated March 20, 2018; and Affirmation in Support of Motion to Dismiss, affirmed by Ray A. Kyles, AAG on March 20, 2018, with Exhibit A annexed thereto.