|Claimant short name:||PAULINO|
|Footnote (claimant name) :|
|Defendant(s):||CUNY and NEW YORK CITY COLLEGE OF TECHNOLOGY|
|Footnote (defendant name) :|
|Judge:||MAUREEN T. LICCIONE|
|Claimant's attorney:||FABIO PAULINO, pro se|
|Defendant's attorney:||HON. LETITIA JAMES, ATTORNEY GENERAL
By: Lawrence E. Kozar, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||November 18, 2019|
|See also (multicaptioned case)|
By claim filed September 4, 2019, pro se claimant Fabio Paulino alleges that defendant New York City College of Technology of the City University of New York ("CUNY") has committed fraud, forgery and trickery by falsely claiming that it disbursed financial aid funds to claimant.
Defendant now makes a pre-answer motion to dismiss the claim on grounds that the Court lacks jurisdiction because the claim was improperly served by regular first class mail and that the claim was untimely. Defendant supports its motion by the affirmation of an assistant attorney general, and has appended the envelope in which the claim was served on the Office of the Attorney General ("OAG"). The envelope bears a forever stamp, and there is no indication that certified mail, return receipt requested was utilized.
Court of Claims Act § 11 (a) (i) provides in pertinent part that:
"[A] copy [of the claim] 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. . . ."
Compliance with these service requirements is a jurisdictional prerequisite for bringing suit in the Court of Claims, and the failure to timely and properly serve a claim therefore compels dismissal (see Fulton v State of New York, 35 AD3d 977 [3d Dept 2006], lv denied 8 NY3d 809 ; Govan v State of New York, 301 AD2d 757 [3d Dept 2003], lv denied 99 NY2d 510 ), as long as the defect is raised with particularity either by a pre-answer motion to dismiss, or in the answer itself (Court of Claims Act § 11 [c]).
Here, defendant has raised claimant's failure to properly and timely serve his claim in a pre-answer motion with the particularity required by Court of Claims Act § 11 (c).
The burden of proving proper service by a preponderance of the evidence is on the claimant (see Boudreau v Ivanov, 154 AD2d 638, 639 [2d Dept 1989]; see also White v State of New York, UID No. 2009-039-140 [Ct Cl, Ferreira, J., Aug. 28, 2009] ["once an objection to the manner of service is raised, claimant has the burden of establishing proper service by a preponderance of the evidence"]).
In his affidavit of service, claimant checked off a box by a pre-printed statement that the claim was served by "certified mail, return receipt requested," addressed to the Attorney General's Office. However, in his opposition papers, he does not contend that the claim was served by a method authorized by statute, nor does he present a certified mail receipt. Instead he states that his claim is "legitimately valid and its cause latent" and that he does "not have the obligation to discuss any" of the statements made by the assistant attorney general at the moment. Claimant therefore has made no legally cognizable argument why defendant's motion should not be granted, and he proffers no evidence to dispute the assertion that the claim was not properly served on the OAG. Therefore, the Court finds that claimant has failed to meet his burden of establishing proper service.
In addition to the claim having been improperly served by regular mail, defendant argues that the claim is untimely. The claim alleges that the fraud took place on two occasions: Fall of 2013 and Fall of 2017, but the claim states that it accrued on August 23, 2019 (Claim ¶¶ 2, 3). Without deciding that a valid claim exists, a claim for fraudulent misrepresentation must be brought within 90 days of the day it was discovered or could have been with reasonable diligence (see also Lancaster Dev. v State of New York, 148 AD2d 892, 894 [3d Dept 1989]; Waters of Saratoga Springs v State of New York, 116 AD2d 875, 877-878 [3d Dept 1986], affd 68 NY2d 777 ; see also Court of Claims Act § 10 [3-b](1) ).
In Waters of Saratoga Springs, supra, the Appellate Court stated that the 90-day period begins to run when a claimant "possesse[s] knowledge of facts sufficient to suggest to a person of ordinary intelligence the probability that he has been defrauded [whereupon] a duty of inquiry arises and may thus start the running of the statute" (116 AD2d at 878 [citations omitted]). Defendant argues that since neither the claim, nor any notice of intention was served within 90 days of the dates when the alleged fraud transpired -- fall of 2013 and fall of 2017 -- the claim served on September 4, 2019 is untimely and therefore is jurisdictionally defective. As noted above, claimant does not directly address the arguments made by defendant on this motion and therefore he does not challenge defendant's assertion that the claim was untimely.
Moreover, the claim alleges "I have provided the college with irrefutable proofs of my payments for the semesters in question on several occasions" (Claim ¶ 2). Though claimant makes the conclusory assertion in his pleading that the claim accrued on August 23, 2019, given the allegations that instances of fraud had occurred years earlier and that he had communicated his concerns with CUNY on several occasions, there is no objective basis proffered that supports the statement that the claim accrued on August 23, 2019 (see Gutkin v Siegal, 85 AD3d 687, 688 [1st Dept 2011] ["[t]he test as to when fraud should with reasonable diligence have been discovered is an objective one"] [citation and internal quotation marks omitted]). Therefore, the Court finds that the claim is untimely under the Court of Claims Act § 10 (3-b).(2)
In view of the foregoing, the Court lacks jurisdiction over the claim, and therefore the claim must be dismissed.
Accordingly, it is hereby
ORDERED that defendant's motion no. M-94737 is granted and claim no. 133579
1. Defendant's Notice of Motion, Affirmation in Support and annexed exhibit.
2. Claimant's Affidavit in Opposition.
November 18, 2019
Central Islip , New York
MAUREEN T. LICCIONE
Judge of the Court of Claims
1. Court of Claims Act § 10 (3-b) provides that:
"[a]claim to recover damages for injuries to property or for personal injuries caused by the intentional tort of an officer or employee of the state while acting as such officer or employee, or of a member of the organized militia or of an employee in the division of military and naval affairs of the executive department, shall be filed and served upon the attorney general within ninety days after the accrual of such claim, unless the claimant shall within such time serve upon the attorney general a written notice of intention to file a claim therefor, in which event the claim shall be filedand served upon the attorney general within one year after the accrual of such claim."
2. To the extent it could be argued that the cause of action sounds in breach of contract, such a claim is governed by the six-month time limitations period of Court of Claims Act §10 (4), the outcome would be the same.