The claim is dismissed for claimant's failure to serve a copy of the claim upon the Attorney General in compliance with Court of Claims Act § 11 (a) (i).
|Claimant(s):||THEODORE W. FAUSS|
|Claimant short name:||FAUSS|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Motion number(s):||M-92107, M-91746|
|Judge:||JUDITH A. HARD|
|Claimant's attorney:||Theodore W. Fauss, Pro Se|
|Defendant's attorney:||Hon. Barbara D. Underwood, Attorney General
By: Paul F. Cagino, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||September 25, 2018|
|See also (multicaptioned case)|
Claimant, a state employee proceeding pro se, filed the instant claim with the Clerk of the Court on September 22, 2017 seeking damages for defendant's alleged failure to properly calculate overtime pay due claimant.(1) On its own motion, the Court issued an Order to Show Cause, dated January 29, 2018, 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. Both claimant and defendant submitted affidavits in compliance with the Court's Order to Show Cause, filed on February 14, 2018 and March 1, 2018, respectively. Claimant further submitted a reply letter, which was filed on March 12, 2018. Thereafter, defendant filed a motion to dismiss the claim in lieu of an answer on April 11, 2018. Defendant's motion to dismiss the claim states four grounds for dismissal. First, defendant argues that it accepted services of the instant claim on March 12, 2018, however, the claim served upon defendant is not the same claim filed with the Court. Secondly, defendant argues that the claim is untimely. Next, defendant argues that the claim fails to satisfy the specificity requirements set forth in Court of Claims Act § 11 (b). Lastly, defendant argues that the claim fails to state a cause of action. Claimant opposes the motion for dismissal.
"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]).
In response to the Court's Order to Show Cause, defendant has submitted an affidavit sworn to by Debra L. Mantell, Legal Assistant II in the Office of the Attorney General (OAG) in Albany, New York, whose job duties require her to be familiar with the office's record keeping system (Exhibit C). Mantell avers that, on September 22, 2017, the OAG was served with an affidavit of service from claimant (Mantell Aff. ¶ 5). However, there was no other document in the envelope besides the affidavit of service (id.). Mantell further states that she found "no record that the Attorney General received a Notice of Intention to File a Claim and/or claim from [claimant] for an incident that occurred at Mohawk Correctional Facility on or about June 11, 2011" (Verified Claim ¶ 2; Mantell Aff. ¶ 10).
"A properly executed affidavit of service raises a presumption that a proper mailing occurred" (Engel v Lichterman, 62 NY2d 943, 944 ). However, where the affidavit of service filed with the Court is defective, a claimant cannot rely on it to establish proper service (Allen v State of New York, UID No. 2002-028-014 [Ct Cl, Sise, J., Mar. 21, 2002]). Upon inspection, the Court finds that the filed Affidavit of Service for the instant claim is facially defective in that it fails to state the document served, and fails to state the date that the document was served (see id.). Thus, the Affidavit of Service is not "properly executed" (see Engel v Lichterman, 62 NY2d at 944). Furthermore, 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 a review of the Office of the Attorney General's records failed to locate either a notice of intention or claim in this matter (Mantell Aff. ¶ 10). 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]).
Claimant now argues that his claim has been properly served upon the Attorney General. However, the Court has reviewed the claim filed with the Clerk of the Court on September 22, 2017 and the claim that was served upon the Attorney General on March 12, 2018 (Cagino Aff., Exhibit A), and finds that the two claims are not identical. Court of Claims Act § 11 (a) (i) states that "[t]he claim shall be filed with the clerk of the Court; and, except in the case of a claim for the appropriation by the state of lands, a copy shall be served upon the attorney general." Thus, "it is clear that section 11 (a) (i) anticipates that the pleading served be a reproduction of the same original claim that is filed" (Van Buskirk v State of New York, 22 Misc 3d 953, 956 [Ct Cl 2008], affd 70 AD3d 1313 [4th Dept. 2010], lv denied 72 AD3d 1659 [4th Dept. 2010]). Although the served claim need not be an exact reproduction of the filed claim, material discrepancies between the served claim and the filed claim compel dismissal of the claim for failure to comply with the filing and service provisions set forth in Court of Claims Act § 11 (id., citing Hardy v State of New York, UID No. 2007-034-554 [Ct Cl, Hudson, J., Jan. 4, 2008]; Ali v State of New York, UID No. 2006-028-516 [Ct Cl, Sise, J., Feb. 7, 2006]; Gordon v State of New York, UID No. 2003-032-133 [Ct Cl, Hard, J., Dec. 31, 2003]; see also Gibson v State of New York, UID No. 2016-049-038 [Ct Cl, Weinstein, J., Oct. 7, 2016]). Here, the amount of damages sustained--an item which Court of Claims Act § 11 (b) obligates claimant to allege--is different in each of the two claims. The differing amounts reflecting the total sum claimed constitute a material discrepancy, which deprives the Court of jurisdiction over the instant claim (Smith v State of New York, UID No. 2009-044-521 [Ct Cl, Schaewe, J., Mar. 16, 2009] [dismissing claim where the total sum claimed differed between the claim served upon the Attorney General and the claim filed with the Clerk of the Court]).
Because the Court has determined that it lacks jurisdiction over this claim, the Court need not consider defendant's alternate grounds for dismissal (see Jordan v State of New York, UID No. 2011-049-008 [Ct Cl, Weinstein, J., Sept. 6, 2011]).
Based upon the foregoing, it is hereby
ORDERED, that the Court's motion (M-91746) is GRANTED and the claim (No. 130294) is DISMISSED; and it is further
ORDERED, that defendant's motion to dismiss (M-92107) is denied as moot.
September 25, 2018
Albany, New York
JUDITH A. HARD
Judge of the Court of Claims
1. Verified Claim, filed on September 22, 2017.
2. Affidavit of Service by Mail, sworn to by claimant on February 6, 2018.
3. Affirmation in Compliance with Order to Show Cause, affirmed by Paul F. Cagino, AAG on March 1, 2018, with Exhibits A through C annexed thereto.
4. Letter from Claimant, dated March 9, 2018, with Attachments.
5. Notice of Motion to Dismiss in Lieu of Answer, dated April 11, 2018, and Affirmation in Support of Motion to Dismiss in Lieu of Answer, affirmed by Paul F. Cagino, AAG on April 11, 2018, with Exhibit A annexed thereto.
6. Affidavit in Opposition of Motion to Dismiss, sworn to by claimant on April 28, 2018.
1. Although claimant does not specify his position, it appears from the documents attached to the claim that claimant is employed by the Department of Corrections and Community Supervision as a teacher in DOCCS' summer school program (see Verified Claim).