Motion seeking "forgiveness for the misfiling" of the claim denied inasmuch as the statutory filing and service requirements in Court of Claims Act are jurisdictional in nature and may not be overlooked. To the extent motion can be considered as late claim relief, claimant has failed to address the relevant statutory factor.
|Claimant(s):||JOHN W. MILNER|
|Claimant short name:||MILNER|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK, GOVERNOR ANDREW CUOMO, ATTORNEY GENERAL LETITIA JAMES, DETECTIVE JOHN FLOOD, 2 UNNAMED DETECTIVES, AND SOMERS POLICE CHIEF MICHAEL DRISCOLL|
|Footnote (defendant name) :|
|Judge:||W. BROOKS DeBOW|
|Claimant's attorney:||JOHN W. MILNER, Pro se|
|Defendant's attorney:||LETITIA JAMES, Attorney General
of the State of New York
By: Glenn C. King, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||November 10, 2020|
|See also (multicaptioned case)|
Claimant, a pro se litigant, has filed this motion seeking "forgiveness for the misfiling of this claim [Claim No. 132948]," which was filed with the Court on April 18, 2019 and subsequently dismissed for lack of service upon the Office of the Attorney General of the State of New York as required under Court of Claims Act § 11 (a) (i) (see Milner v State of New York et al., UID No. 2019-038-604 [Ct Cl, DeBow, J., Nov. 6, 2019]). The claim sought compensation for civil rights violations related to the alleged failure of the named defendants to investigate claimant's allegations that his family members received an improper payment from the United States Treasury (see Proposed Claim, ¶ 2). Defendant opposes the motion, which it addresses as an application for late claim relief pursuant to Court of Claims Act § 10 (6).
The claim alleges that the named defendants "failed in their duties as public servants to investigate [claimant's] allegation that [his] cousin . . . , her husband . . . , and their family received corrupt wealth from the United States Treasury, in the amount of about $3 million" (Proposed Claim, ¶ 2). The claim alleges that claimant "believe[s] that [he] was assaulted by the United States Government" due to the actions of an English ancestor during World War I, and that claimant "ha[s] substantial, overwhelming proof about this [theory] that [he] would like to present to a court of federal jurisdiction at the appropriate time" (id.). The claim further alleges that claimant "ha[s] suffered serious civil rights violations, including a lockout from the New Jersey State Courthouse by the state attorney general, and a delay in rectifying this by the federal judge, in addition to the civil rights deprivation charges from New York" (id. at ¶ 5; see id., attachments ["My Civil Rights Charges," dated Apr. 18, 2019]).
In support of the instant motion, claimant has submitted an unsworn letter to the Court "requesting forgiveness for the misfiling of this claim," which led to its dismissal for lack of service on the Attorney General, and asking that the claim be reinstated (Milner Correspondence, dated Feb. 11, 2020). Claimant asserts in the letter that the claim was initially "misfil[ed]" in April 2019 when he appeared personally at the Court of Claims building and sought assistance with the filing of his claim, and was informed that the Court would file his claim with the Attorney General's Office and that he need not take any further action (id.). In support of that assertion, claimant has provided the April 22, 2019 letter from the Chief Clerk of the Court of Claims confirming the filing of the claim, which was copied on the Attorney General's Office (see Fazzone Correspondence, dated Apr. 22. 2019). Claimant states that based on that letter, he "was certain things were in order, and [he] was misled about the gravity of the problem" (Milner Correspondence, dated Feb. 11, 2020).
As the Court previously explained in the November 6, 2019 Decision and Order dismissing this claim, it is well settled that the filing and service requirements of the Court of Claims Act, including the requirement that the claim be served on the Attorney General "personally or by certified mail, return receipt requested" (Court of Claims Act § 11 [a] [i]), 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]). The Court may not overlook such a jurisdictional defect and allow a claim that does not comply with the service requirements of the Court of Claims Act to be "reinstated," notwithstanding claimant's unsworn allegations with regard to the initial "misfiling" of this claim, and claimant's motion seeking that relief must be denied.
Insofar as the instant motion can be construed as seeking late claim relief, in deciding a motion for late claim relief, the Court is required to consider the following factors:
"whether the delay in filing the claim was excusable; whether the state had notice of the essential facts constituting the claim; whether the state had an opportunity to investigate the circumstances underlying the claim; whether the claim appears to be meritorious; whether the failure to file or serve upon the attorney general a timely claim or to serve upon the attorney general a notice of intention resulted in substantial prejudice to the state; and whether the claimant has any other available remedy"
(Court of Claims Act § 10 ). The presence or absence of any particular factor is not controlling (see Bay Terrace Coop. Section IV v New York State Employees' Retirement Sys. Policemen's & Firemen's Retirement Sys., 55 NY2d 979, 981 ), and the weight accorded the various factors is a matter within the discretion of the Court. Although "[t]he movant need not satisfy every statutory element[,] . . . the burden rests with the movant to persuade the court to grant [the] late claim motion" (Frederick v State of New York, 23 Misc 3d 1008, 1011 [Ct Cl 2009]).
To the extent that claimant's letter in support of the instant application can be construed as addressing the statutory factor of whether the delay in filing the claim was excusable, it is not a sworn affidavit, and thus it lacks evidentiary value and is insufficient to demonstrate that the claimant's delay in filing the claim should be excused (see CPLR 2106; see also Discovision Assoc. v Fuji Photo Film Co., Ltd., 71 AD3d 488, 489 [1st Dept 2010] ["in New York State court, . . . if (the parties) do not submit affidavits, they must comply with CPLR 2106"]; see Tafari v State of New York, UID No. 2016-038-501 [Ct Cl, DeBow, J., Jan. 14, 2016]). Moreover, the April 22, 2019 letter from the Chief Clerk of the Court of Claims upon which claimant relies merely acknowledges the filing of the claim on April 18, 2019 and contains information regarding the assignment of the claim to this Court and instructions with respect to the filing of pleadings and, significantly, it instructs claimant: "If you have not filed proof of service of the claim upon the defendant, please do so immediately" (Fazzone Correspondence, dated Apr. 22, 2019). The letter itself thus undercuts claimant's argument that he was misled into believing that the claim had been served on the Attorney General by the Court on his behalf, and, even if his argument had been presented in the form of a properly sworn affidavit, claimant has not demonstrated that the delay was excusable. Moreover, even if claimant's February 11, 2020 correspondence could properly be considered in support of the instant late claim motion, claimant has addressed only one of the six statutory factors, he has failed to demonstrate that the factor weighs in favor of granting the application, and the motion would nevertheless be denied (see Watkins v State of New York, UID No. 2019-015-216 [Ct Cl, Collins, J., Dec. 27, 2019] [motion for late claim relief denied where claimant addressed only the factor of whether the claim was excusable]).
In the absence of an affidavit or argument addressing the six factors set forth in Court of Claims Act § 10 (6), claimant has failed to meet his burden of persuasion on this motion, and it must be denied without prejudice to a subsequent motion addressing the statutory factors set forth in Court of Claims Act § 10 (6) (see Lee v State of New York, 124 AD2d 312, 313 [3d Dept 1986] ["(t)he Court of Claims . . . properly exercised its discretion in denying claimant's motion for permission to file a late claim" where the pro se claimant "failed to address the several factors set forth in Court of Claims Act § 10 (6)"]; see also Pankova-Visser v State of New York, UID No. 2019-038-614 [Ct Cl, DeBow, J., Dec. 18, 2019]; Martinez v State of New York, UID No. 2019-015-148 [Ct Cl, Collins, J., May 16, 2019]).
Accordingly, it is
ORDERED, that claimant's motion number M-95741 is DENIED.
November 10, 2020
Saratoga Springs, New York
W. BROOKS DeBOW
Judge of the Court of Claims
1. Notice of Motion, dated February 11, 2020;
2. Correspondence of John W. Milner, dated February 11, 2020;
3. "Service: Tort Claims #132948," dated February 11, 2020;
4. Claim No. 132948, filed April 18, 2019, with unenumerated attachments;
5. Correspondence of Chief Clerk of the Court of Claims Eileen F. Fazzone, dated Apr. 22. 2019;
6. Affirmation of Glenn C. King in Opposition, dated September 23, 2020.