The Court's Order to Show Cause 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 is granted. Claimant failed to serve the claim upon the Attorney General.
|Claimant(s):||CHUBB NATIONAL INSURANCE CO., a/s/o GIAN ANDRES BOTTA|
|Claimant short name:|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :||The caption has been amended sua sponte to reflect the only property named defendant.|
|Judge:||JUDITH A. HARD|
|Claimant's attorney:||Chubb National Insurance Company|
|Defendant's attorney:||Hon. Barbara D. Underwood, Attorney General|
|Third-party defendant's attorney:|
|Signature date:||September 26, 2018|
|See also (multicaptioned case)|
Claimant, an insurance company, filed the instant claim on March 12, 2018 seeking reimbursement for payments made to its insured as the result of an automobile accident. 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]). On its own motion, the Court issued an Order to Show Cause, dated June 13, 2018 and filed on June 18, 2018, directing claimant to demonstrate why the claim should not be dismissed for lack of jurisdiction based upon claimant's failure to comply with the service requirements of Court of Claims Act § 11. As of the date of this Decision and Order, claimant has not provided an Affidavit of Service and issue has not been joined in the action.(2)
"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 Min Chul Rhee, Clerk/Legal Assistant I in the Office of the Attorney General in New York, New York, whose job duties require him to be familiar with the office's record keeping system (Rhee Aff. ¶¶ 1-2). Rhee avers that, upon a thorough search of the office's computer filing system, he found a letter from the Court of Claims acknowledging receipt of the instant claim, dated April 5, 2018 (Rhee Aff. ¶ 4). Rhee further states that he found "no record . . . establishing that the Office of the Attorney General was served with the either [sic] Notice of Intention or Claim in [this] matter" (Rhee Aff. ¶ 6).
Here, the Court finds that the facts, as stated above, constitute sufficient proof that the claim was not, in fact, served upon defendant (see Cooper v State of New York, UID No. 2014-038-509 [Ct Cl, DeBow, J., Feb. 24, 2014]; Ramirez v State of New York, UID No. 2008-038-592 [Ct Cl, DeBow, J., Apr. 1, 2008]). Thus, the claim is jurisdictionally defective and must be dismissed (see Finnerty v New York State Thruway Auth., 75 NY2d at 722-723; Cudjoe v State of New York, 4 AD3d 322, 323 [2d Dept. 2004]; Pagano v New York State Thruway Auth., 235 AD2d 408 [2d Dept. 1997], lv denied 90 NY2d 804 ; Ramirez v State of New York, UID No. 2008-038-592 [Ct Cl, Apr. 1, 2008, DeBow, J.]).
Accordingly, it is hereby
ORDERED that the Court's motion (M-92394) is granted and claim number 131114 is dismissed.
September 26, 2018
Albany, New York
JUDITH A. HARD
Judge of the Court of Claims
1. Verified Claim, filed on March 12, 2018.
2. Affidavit of Min Chul Rhee, sworn to on July 25, 2018.
2. The Court notes that it received correspondence from claimant by letters dated June 6, 2018 and July 5, 2018. However, the letters are not responsive to the Court's Order to Show Cause.