|Claimant(s):||DEVINE Q. BUGGS|
|Claimant short name:||BUGGS|
|Footnote (claimant name) :|
|Defendant(s):||SCHENECTADY CHILD PROTECTIVE SERVICE|
|Footnote (defendant name) :|
|Judge:||W. BROOKS DeBOW|
|Claimant's attorney:||DEVINE Q. BUGGS, Pro se|
|Defendant's attorney:||LETITIA JAMES, Attorney General
of the State of New York
By: Glenn C. King, AAG
|Third-party defendant's attorney:|
|Signature date:||August 5, 2019|
|See also (multicaptioned case)|
This claim, filed by an individual currently incarcerated in a State correctional facility, seeks monetary compensation for an unspecified incident that allegedly occurred in Schenectady Family Court on December 6, 2019. By Order to Show Cause, filed on June 24, 2019, this Court required claimant to demonstrate why this claim should not be dismissed on jurisdictional grounds for lack of service of the claim upon the Attorney General, as required by Court of Claims Act § 11 (a), and both parties have submitted responses.
Court of Claims Act § 11 (a) (i) requires service of the claim upon the Attorney General. It is well established that the filing and service requirements of the Court of Claims Act are jurisdictional in nature, and that the failure to timely serve the claim upon the Attorney General deprives the Court of subject matter jurisdiction (see Finnerty v New York State Thruway Auth., 75 NY2d 721, 722-723 ; Matter of Dreger v New York State Thruway Auth., 177 AD2d 762, 762-763 [3d Dept 1991], affd 81 NY2d 721 ; Locantore v State of New York, UID No. 2009-038-517 [Ct Cl, DeBow, J., Feb. 11, 2009]).
Defendant's affirmation of counsel in response to the Order to Show Cause states that based upon counsel's personal review of the file, there is no record that any claim or notice of intention was served on the Attorney General with respect to this matter (see King Affirmation, ¶ 3). Defendant also submits the affidavit of Amy Vastola, a legal assistant employed by the Office of the Attorney General (OAG), who avers that the OAG received a letter from the Clerk of the Court of Claims dated April 9, 2019 stating that the Court had received the claim in this matter on March 20, 2019 and that a search of the OAG's digital case management system failed to locate any record that the OAG had been served with the claim (see King Affirmation, Exhibit A [Vastola Affidavit, ¶ 5]). Vastola also averred that the OAG sent a letter to the Clerk of the Court of Claims on June 25, 2019 requesting a copy of the claim and, upon receiving the claim, a second search of the digital case management system again failed to locate any record that OAG had been served (see id. at ¶¶ 6-8).
Claimant responds merely that he is "submitt[ing the affidavit] of service that was submitted back in November 2018" (Response of Devine Q. Buggs, sworn to June 28, 2019). However, claimant has not submitted any such affidavit, makes no further argument, and has provided no additional evidence, such as a certified mail receipt, that the Attorney General was properly served with the claim. The court notes that appended to the claim are two sworn affidavits of service that are not signed, and thus lack any evidentiary value (see Claim No. 132810, Unsigned Affidavits of Service, sworn to Mar. 3, 2019). Furthermore, although the two unsigned affidavits of service that are appended to the claim state that the "N.Y.S. claim form" was served by regular mail (see id.), they fail to include the name and address of the individuals or entities allegedly served (see Mims v State of New York, UID No. 2018-032-082 [Ct Cl, Hard, J., Dec. 10, 2018]). The affidavits of service thus are defective and insufficient to defeat defendant's showing of lack of service (see Allen v State of New York, UID No. 2002-028-014 [Ct Cl, Sise, J., Mar. 21, 2002]).
In sum, defendant's submission, as summarized above, demonstrates that the claim was not served on the Attorney General, and claimant has failed to prove otherwise. Because it has not been shown that the claim was served upon the Attorney General as required by Court of Claims Act § 11 (a) (i), the Court's jurisdiction over the claim has not been established and the claim must be dismissed.
Accordingly, it is
ORDERED, that upon motion number M-94120, claim number 132810 is DISMISSED.
August 5, 2019
Saratoga Springs, New York
W. BROOKS DeBOW
Judge of the Court of Claims
1. Claim number 132810, filed March 20, 2019;
2. Unsigned Affidavits of Service, sworn to March 3, 2019;
3. Order to Show Cause (M-94120), filed June 24, 2019;
4. Affirmation of Glenn C. King, AAG, dated July 2, 2019, with Exhibit A (Affidavit of Amy
Vastola, sworn to July 1, 2019);
5. Response of Devine Q. Buggs, sworn to June 28, 2019.