The claim is dismissed for failure to comply with the service requirement of Court of Claims Act § 11.
|Claimant short name:||VAZQUEZ|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||JUDITH A. HARD|
|Claimant's attorney:||Jose Vazquez, Pro Se|
|Defendant's attorney:||Hon. Letitia James, Attorney General
By: Ray A. Kyles, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||March 25, 2019|
|See also (multicaptioned case)|
Claimant, an inmate proceeding pro se, filed the instant claim on January 17, 2017. On June 20, 2017, claimant filed a motion for summary judgment. On November 5, 2018, defendant filed a cross motion to dismiss the claim on the ground that claimant failed to serve the claim upon the Attorney General in accordance with the Court of Claims Act. Inasmuch as the failure to serve defendant would deprive the Court of subject matter jurisdiction, the Court will first address defendant's cross motion.
"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 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, on October 17, 2016, claimant served defendant with a Notice of Intention by certified mail, return receipt requested (Mantell Aff. ¶ 7 [a]). The Notice of Intention was rejected on October 18, 2016 for lack of a notarized verification page (id.). On or about February 7, 2017, the OAG received a letter from the Court of Claims acknowledging receipt of the instant claim (Mantell Aff. ¶ 5). Mantell further states, however, that she found "no record that the Attorney General was served with a claim  by [claimant] for incidents that allegedly occurred at Marcy, Elmira, Jamesville, Wyoming, Gowanda Correctional Facilities and at Willard Drug Treatment Center" (Mantell Aff. ¶ 8; see Verified Claim ¶¶ 2-3).
The Affidavit of Service attached to the claim filed with the Court states that a "copy of the documents enclosed Motion" was served upon the Attorney General, not a claim. Further, the Affidavit of Service does not state the date that the documents were served or that said documents were by certified mail, return receipt requested. Upon inspection, the Court finds that the filed Affidavit of Service for the instant claim is facially invalid in that it fails to state that a claim was served upon the Attorney General, fails to state the date that a claim was served upon the Attorney General, and fails to state that the claim was served by certified mail, return receipt requested (see Allen v State of New York, UID No. 2002-028-014 [Ct Cl, Sise, J., Mar. 21, 2002]).
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]). Here, claimant has not submitted a response to defendant's cross motion to dismiss the claim. Thus, 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; Scales v State of New York, UID No. 2003-030-013 [Ct Cl, Scuccimarra, J., Apr. 8, 2003]; compare Barnes v State of New York, UID No. 2016-038-510 [Ct Cl, DeBow, J., Feb. 22, 2016]). 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 cross motion to dismiss the claim (CM-93056) is GRANTED; and it is further
ORDERED that claimant's motion for summary judgment (M-92691) is DENIED as moot; and it is further
ORDERED that claim number 129188 is DISMISSED.
March 25, 2019
Albany, New York
JUDITH A. HARD
Judge of the Court of Claims
1. Verified Claim, filed on January 17, 2017.
2. Summary Judgment Motion, sworn to by claimant on June 8, 2017.
3. Notice of Cross-Motion to Dismiss claim, dated November 1, 2018; and Affirmation in Support of Motion to Dismiss, affirmed by Ray A. Kyles, AAG on November 1, 2018, with Exhibit A annexed thereto.