Motion to dismiss claim denied; defendant concedes proper service.
|Claimant short name:||JOHNSON|
|Footnote (claimant name) :|
|Defendant(s):||STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||CATHERINE E. LEAHY-SCOTT|
|Claimant's attorney:||Aaron Johnson, Pro Se|
|Defendant's attorney:||Hon. Letitia James, Attorney General
By: Thomas Trace, Esq., Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||November 14, 2019|
|See also (multicaptioned case)|
On August 28, 2014, the Chief Clerk of the Court received one mailing from pro se Claimant Aaron Johnson containing the following items: (1) a Claim, (2) an affidavit in support of an application for poor person relief, and (3) a notice of motion to file a late claim and an affidavit in support.
The Chief Clerk treated each of the items in Claimant's submission as they were respectively designated. Thus, the Claim included in the mailing was filed as Claim No. 124907. The Claim alleges that correction officers at Mid-State Correctional Facility destroyed 20 of his pictures while he was being transported from his cell to the facility's special housing unit. Moreover, Claimant's notice of motion to file a late claim and affidavit in support was filed as Motion No. M-85656. Like Claim No. 124907, the late claim application alleged that the State's negligence resulted in the destruction of his property.
By Decision and Order dated December 8, 2014 and entered January 8, 2015, this Court denied Claimant's late claim motion (see Johnson v State of New York, M-85656 [Ct Cl, Midey, Jr, J. [Ret.], Jan. 8, 2015]). Initially, the Court determined that because "[C]laimant did not otherwise submit a copy of his proposed claim with his late claim application, the Court takes the position that the subject matter of this late claim application is identical to that which is contained in the filed claim No. 124907" (id. at 2). The Court denied the motion on the ground that late claim relief under Court of Claims Act § 10 (6) is not available for inmate bailment claims. In closing, the Court noted that "claim No. 124907 remains open, subject to whatever legal objections may apply thereto" (id. at 3).
A trial for the Claim was scheduled for December 4, 2019. Claimant moves for (1) a courtesy copy of the Claim file and (2) an adjournment of the trial to January 15, 2020 so that he can retain counsel (M-94765). By letter dated October 29, 2019, the Court provided Claimant with a courtesy copy of its entire case file for the Claim. Accordingly, to the extent the motion seeks a courtesy copy of the Claim file, it is denied as moot.
Rather than opposing Claimant's motion, Defendant moves to dismiss the Claim pursuant to CPLR 3211 (a) (2) and (8) on the grounds that the Court lacks both personal jurisdiction and subject matter jurisdiction (M-94810). Specifically, Defendant contends that the Court lacks both personal jurisdiction over it and subject matter jurisdiction over the Claim because neither a Claim nor a Notice of Intention to File a Claim was ever served upon the New York State Attorney General's Office within 90 days of accrual as mandated by Court of Claims Act § 11 (a) (i). In particular, Defendant contends that although the Attorney General was served with Claimant's motion for permission to file a late claim (M-85656), it was never served with the instant Claim (see Affirmation of Thomas Trace, Esq., Assistant Attorney General ¶ 2).
Court of Claims Act § 11 (a) (i) mandates that a copy of the Claim be served personally or by certified mail, return receipt requested, upon the Attorney General within the applicable time period provided in Section 10 of the Court of Claims Act. Failure to serve the Attorney General with the Claim divests the Court of subject matter jurisdiction (see Finnerty v New York State Thruway Auth., 75 NY2d 721, 723 ; Maude V. v New York State Off. of Children & Family Servs., 82 AD3d 1468, 1469 [3d Dept 2011]). Claimant bears the ultimate burden of establishing proper service by a preponderance of the credible evidence (see Caci v State of New York, 107 AD3d 1121, 1124 [3d Dept 2013]; Hallston Manor Farm, LLC v Andrew, 60 AD3d 1330, 1330 [4th Dept 2009]; Boudreau v Ivanov, 154 AD2d 638, 639 [2d Dept 1989]).
In support of its motion, Defendant includes an affidavit from Debra L. Mantell, "a Legal Assistant II in the Albany Office of the Attorney General of the State of New York," who attested that she is familiar with the record-keeping system of the Attorney General's Office regarding notices of intention, motions, and claims that are served upon the Attorney General's Office (see Affirmation of Thomas Trace, Esq., Assistant Attorney General Ex C [Affidavit of Debra L. Mantell, sworn to on October 28, 2019] ¶¶ 1-2).
Ms. Mantell affirms that upon her thorough search of the records of the New York State Attorney General's Office, "the only document that the Attorney General was served with, by Aaron Johnson, was a motion to late file, together with a supporting affidavit and proposed claim, for an incident that occurred at Mid-State Correctional Facility on or about February 21, 2014" (id. at ¶ 11 [emphasis added]). However, as this Court previously determined, there was no proposed claim attached to Claimant's late claim application (see Johnson v State of New York, M-85656 [Ct Cl, Midey, Jr, J. [Ret.], Jan. 8, 2015], at 2). Thus, it appears that Defendant mistakenly treated Claim No. 124907 as a "proposed claim" for Claimant's late claim application. Indeed, the "proposed claim" Defendant admits to receiving is identical to Claim No. 124907 (compare Affirmation of Thomas Trace, Esq., Assistant Attorney General, Ex A, with Claim No. 124907, filed on August 28, 2014). Moreover, Ms. Mantell concedes that the "proposed claim" was served upon the Attorney General by certified mail, return receipt requested (see Affidavit of Debra L. Mantell ¶ 10 [a]). In sum, the Court concludes that Defendant's submission amounts to an admission that the Attorney General was served with Claim No. 124907 by certified mail, return receipt requested. Consequently, Defendant's motion to dismiss is denied.
As to Claimant's request for an adjournment, it is s well-settled that "[a]pplications for adjournments are addressed to the discretion of the trial court" (Borak v Karwowski, 151 AD2d 454, 455 [2d Dept 1989], lv dismissed 74 NY2d 893 ; see Matter of Anthony M., 63 NY2d 270, 283 ). In exercising its discretion the Court undertakes a balanced consideration of all relevant factors including, but not limited to, whether a claimant possesses a meritorious cause of action; prejudice or the lack thereof resulting from an adjournment; the intent or lack of intent to abandon the action; and whether the need for the adjournment could have been obviated with the exercise of due diligence (see Park Lane N. Owners, Inc. v Gengo, 151 AD3d 874, 875 [2d Dept 2017]; State of New York v Massapequa Auto Salvage, 267 AD2d 679, 680 [3d Dept 1999], lv denied 95 NY2d 753 ).
Assuming without deciding that this Claim is meritorious, the Court concludes that the need for the adjournment is solely attributable to Claimant's own lack of due diligence over the last five years in securing the assistance of counsel (see Chiarello v State of New York, UID No. 2007-037-506 [Ct Cl, Moriarty III, J., Jan. 3, 2008]). Accordingly, to the extent Claimant seeks an adjournment, his motion is denied.
Accordingly, it is hereby
ORDERED, that, to the extent Claimant's motion number M-94765 is denied; and it is further
ORDERED, that Defendant's motion number M-94810 is denied.
November 14, 2019
Albany, New York
CATHERINE E. LEAHY-SCOTT
Judge of the Court of Claims
The Court has considered the following in deciding these motions:
(1) Motion for Adjournment, dated October 16, 2019.
(2) Claim No. 124907 filed on August 28, 2014.
(3) Motion No. M-85656, filed on August 28, 2014.
(4) Notice of Motion to Dismiss, dated October 29, 2019.
(5) Affirmation of Thomas Trace, Esq., Assistant Attorney General in Support of the Motion to Dismiss, dated October 29, 2019 with exhibits.
(6) Claimant's Opposition to Defendant's Motion to Dismiss, dated November 5, 2019.