New York State Court of Claims

New York State Court of Claims
CUMMINGS v. THE STATE OF NEW YORK, # 2020-041-031, Claim No. 133212, Motion No. M-95125

Synopsis

Defendant's motion to dismiss claim as untimely because notice of intention to file claim was not served upon the Attorney General by either personal service or by certified mail, return receipt requested, as required by Court of Claims Act 11 (a) (i), is granted after Traverse Hearing.

Case information

UID: 2020-041-031
Claimant(s): MICHAEL CUMMINGS
Claimant short name: CUMMINGS
Footnote (claimant name) :
Defendant(s): THE STATE OF NEW YORK
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 133212
Motion number(s): M-95125
Cross-motion number(s):
Judge: FRANK P. MILANO
Claimant's attorney: DAVID HOROWITZ, P.C.
By: Christopher Joslin, Esq., Of Counsel
Defendant's attorney: HON. LETITIA JAMES
New York State Attorney General
By: Shadi Masri, Esq.
Assistant Attorney General
Third-party defendant's attorney:
Signature date: October 1, 2020
City: Albany
Comments:
Official citation:
Appellate results:
See also (multicaptioned case)

Decision

Defendant moves to dismiss this negligence claim for lack of jurisdiction based upon claimant's failure to serve the claim within ninety days of accrual as required by Court of Claims Act 10 (3).

In particular, defendant asserts that claimant's notice of intention to file a claim (notice of intention), allegedly served by claimant to extend his time to serve his claim, did not comply with Court of Claims Act 11 (a) (i), which requires personal service or service by certified mail, return receipt requested.

Claimant opposes the defendant's motion to dismiss the claim.

The negligence claim accrued on November 16, 2017. Pursuant to Court of Claims Act 10 (3) the claim, or, alternatively, a notice of intention, was required to be served by claimant on the Attorney General within ninety days of its accrual:

"A claim to recover damages for injuries to property or for personal injuries caused by the negligence or unintentional tort of an officer or employee of the state while acting as such officer or employee, 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 filed and served upon the attorney general within two years after the accrual of such claim."

Courts have consistently held that "[a]s a condition of the State's limited waiver of sovereign immunity, those requirements [timely filing and service] are strictly construed and a failure to comply therewith is a jurisdictional defect compelling the dismissal of the claim" (Welch v State of New York, 286 AD2d 496, 497-498 [2d Dept 2001]; see Robinson v State of New York, 38 AD3d 1030 [3d Dept 2007]; Pizarro v State of New York, 19 AD3d 891, 892 [3d Dept 2005], lv denied 5 NY3d 717 [2005]).

The claimant was thus required to serve on the Attorney General either the claim, or notice of intention, on or before February 14, 2018.

With respect to the manner of service, Court of Claims Act 11 (a) (i), provides, at relevant 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."

Claimant is required to satisfy the "literal notice requirements of Court of Claims Act 11" (Femminella v State of New York, 71 AD3d 1319 [3d Dept 2010]). Any manner of service other than personal service or certified mail, return receipt requested, is insufficient to strictly fulfill the statutory criteria (Femminella, 71 AD3d at 1319).

Defendant's motion papers provided proof that on December 26, 2017 claimant's attorney served by mail an "original" and a "duplicate copy" of his notice of intention on the Attorney General (AG) at both the AG's New York City Office, located at 120 Broadway, and at the AG's Albany office, located at The Capitol. The claimant's attorney's cover letter for each of the two mailings requested that the AG "return the duplicate copy in the self-addressed, stamped envelope with the date of receipt marked thereon." Neither of the two mailings was served on the AG by certified mail, return receipt requested, as mandated in Court of Claims Act 11 (a) (i).

The defendant's motion papers included, as Exhibit A, copies of the notice of intention contained in claimant's attorney's December 26, 2017 mailings. One copy of the notice of intention, attached as defendant's exhibit, included two AG stamps: The first stamp stated "RECEIVED [ - - ] DEC 26 2017 [ - - ] Claims Bureau - NYC" and the second stamp stated "RECEIVED NYS OFFICE OF THE [ - - ] DEC 29 2017 [ - - ] ATTORNEY GENERAL CLAIMS BUREAU."

On June 19, 2019, the claimant served his claim on the AG at the New York City Office at 120 Broadway by personal service.

Because the claim was served more than ninety days after its accrual on November 16, 2017, it is jurisdictionally defective unless claimant timely and lawfully served a notice of intention on the AG pursuant to Court of Claims Act sections 10 (3) and 11 (a) (i).

In his opposition to defendant's motion to dismiss, claimant conceded that his mailings of a notice of intention to the AG, received by the AG on December 26, 2017, were not served by certified mail, return receipt requested, and did not satisfy the jurisdictional requirements of Court of Claims Act 11 (a) (i).

Instead, claimant's attorney offered the affidavit of an office manager (Hicks) who swore that on December 29, 2017 he made personal service on the AG "of an original Notice of Intention to File Claim" and that:

"Upon service of the original Notice of Intention to File Claim, I gave a copy of the Notice of Intention to File Claim to the clerk to stamp evidencing my personal service of the Notice of Intention to File Claim. A copy of the Notice of the Notice of Intention to File Claim stamped on December 29, 2017, by the Office of the Attorney General is annexed to defendant's motion as Exhibit 'A'."

In reply, defendant denied that claimant's notice of intention was served by personal service on the AG either on December 29, 2017, or at any other time, and asserted that claimant, in relying solely on defendant's Exhibit A, did not produce claimant's own copy of the stamped notice of intention allegedly personally served by Hicks on the AG on December 29, 2017, or any other exhibits, to prove personal service on the AG on December 29, 2017.

Defendant further argued that the December 29, 2017 AG stamp on the notice of intention, relied upon by claimant, is not the "unique" stamp (defendant's Reply Exhibit C, also, as hereafter discussed, Exhibit 3 in a subsequently described Traverse Hearing) used by the Managing Attorney of the New York State Attorney General's Office to signify personal service of a document on the AG. The defendant provided an example of the "unique" stamp used by the Attorney General's office to show personal service (defendant's Reply Exhibit C and Traverse Hearing Exhibit 3) which states "STATE OF NEW YORK ATTORNEY GENERAL MANAGING ATTNY'S OFC RECEIVED 2020 JAN 10 PM 6:17."

Defendant also provided the affirmation of the Managing Attorney of the New York State Attorney General's Office who stated that she oversees the New York City AG clerical staff:

"[W]ho accept the service of legal papers served on the [AG] and who create and maintain the records of such service in a computerized database. In the regular course of business, upon the receipt of a document received by the [AG], a clerk will immediately create an electronic record documenting its service in the computerized database."

The Managing Attorney of the New York State Attorney General's Office (Managing Attorney) further swore that:

"I searched the computerized records of documents personally served on the [AG] in connection with the above-referenced matter. Based on this search, I state that on December 29, 2017, the [AG] at 120 Broadway, New York, New York, has no record of personal service of the Notice of Intention to File Claim for Michael Cummings."

Finally, the Managing Attorney stated that:

"Additionally, I would state that if there was service of a document on December 29, 2017, we would have stamped the copy for the server with the [AG] Managing Attorney's Office stamp showing the date and time which the attorney has not proffered."

After consideration of the parties motion papers, and based upon the necessity of resolving the dispositive factual issue raised by the parties submissions regarding the disputed personal service of the notice of intention on the AG on December 29, 2017, the Court conducted a Traverse Hearing on September 16, 2020 pursuant to the stipulation of the parties and the Court of Claims Instructions and Guidelines for Virtual Trials.

Claimant presented the testimony of Hicks, its employee who allegedly made personal service of the notice of intention on the AG on December 29, 2017.

Hicks stated that on December 29, 2017 the name partner at the office of claimant's attorney (Horowitz) assigned Hicks to serve on the AG at 120 Broadway a copy of the notice of intention previously served on the AG by mail at 120 Broadway and allegedly returned to the Horowitz office by the AG in the "self-addressed, stamped envelope with the date of receipt marked thereon." Because the notice of intention copy to be served by Hicks on December 29, 2017 was allegedly a copy of the notice of intention allegedly returned by mail to the Horowitz office by the AG, it already had the December 26, 2017 stamp on it, as described earlier ("RECEIVED [ - - ] DEC 26 2017 [ - - ] Claims Bureau - NYC"). In addition to serving the AG with the notice of intention copy, Hicks was to have a second copy of the notice of intention stamped by the AG to prove personal service on December 29, 2017 and to return with the stamped copy.

Hicks testified that he was familiar with the process involved in effecting personal service of a claim or notice of intention on the AG and had done so 25-30 times. He described the AG's Office at 120 Broadway as containing two (2) entrances: The main entrance on Broadway and a "back" entrance on a street he could not name.

Hicks testified that he entered the building at 120 Broadway from the Broadway entrance, as he had always done previously, and was escorted by a security guard to the AG clerk's office where service was to be made. Hicks generally described the security guard and further provided a description of the AG employee to whom he purportedly presented the two (2) copies of the notice of intention. Hicks stated that he was given back the second copy of the notice of intention with a stamp on it.

Hicks identified the claimant's hearing Exhibit A (a copy of the defendant's motion Exhibit A) as the notice of intention he served on the AG on December 29, 2017. The notice of intention included the two AG stamps described earlier: The first stamp stated "RECEIVED [ - - ] DEC 26 2017 [ - - ] Claims Bureau - NYC" and the second stamp stated "RECEIVED NYS OFFICE OF THE [ - - ] DEC 29 2017 [ - - ] ATTORNEY GENERAL CLAIMS BUREAU."

After returning to the Horowitz office, both attorney Horowitz and Hicks noticed that the December 29, 2017 stamp allegedly just placed on the notice of intention by the AG was not the same stamp both Horowitz and Hicks had seen previously used by the AG to indicate personal service of a claim or notice of intention.

However, neither Horowitz nor Hicks pursued the stamp issue further and Hicks thereafter allegedly scanned the notice of intention into the Horowitz office record system.

The defendant's Managing Attorney also testified at the Traverse Hearing and cast doubt on Hicks' assertion that he had entered 120 Broadway on December 29, 2017 through the Broadway entrance. She explained that, contrary to Hicks' testimony, there were four entrances to 120 Broadway and that in December of 2017, a person seeking to effect personal service of a document on the Attorney General would be directed to use the Nassau Street entrance, and only the Nassau Street entrance, to the building.

Defendant's Managing Attorney repeated, and expanded upon, her affirmation submitted in reply to claimant's motion opposition. She described the AG's electronic recording system used to document personal service of legal documents on the AG. She explained that the Attorney General's office had searched its electronic personal service recording system and found no record of the AG having been personally served with the notice of intention on December 29, 2017, or at any other time.

The Managing Attorney reiterated that neither of the stamps appearing on the notice of intention allegedly served on the AG on December 29, 2017 were stamps used by the Attorney General's New York City Office to confirm that the AG had been personally served with a document. She testified that her staff, charged with receiving service of process on the AG in New York City, did not possess a "Claims Bureau" stamp capable of imprinting the phrase "RECEIVED NYS OFFICE OF THE [ - - ] DEC 29 2017 [ - - ] ATTORNEY GENERAL CLAIMS BUREAU" on the notice of intention purportedly served by Hicks on the AG on December 29, 2017.

The testimony of the Managing Attorney strongly suggested that the two stamps on the notice of intention (defendant's motion Exhibit A, claimant's hearing exhibit A, defendant's hearing Exhibit 2) represented:

1) Receipt of the notice of intention by the AG'S New York City Claims Bureau by mail from claimant on December 26, 2017; and,

2) Receipt by the AG's Albany Claims Bureau, on December 29, 2017, after interagency transfer of the notice of intention from the AG's New York City Claims Bureau to Albany. After hearing the testimony of the two Traverse Hearing witnesses and observing their demeanor as they provided it, and, importantly, having carefully reviewed the documentary evidence provided solely by defendant, the Court credits the hearing testimony of the defendant's Managing Attorney, and does not credit the hearing testimony of claimant's witness Hicks, as to the determinative issue: Whether the claimant effected personal service of the notice of intention on the Attorney General on December 29, 2017.

The testimony of Hicks lacked credibility for, among other aspects, the following reasons:

1. Hicks testified that he entered 120 Broadway to serve the AG via the Broadway entrance while the Managing Attorney stated that persons attempting service on the AG would uniformly be re-directed to the Nassau Street entrance.

2. Both attorney Horowitz and Hicks allegedly noticed that the December 29, 2017 AG stamp on the notice of intention was different from the type of stamp they had previously seen on personally served documents, yet neither took any further action.

3. Hicks testified that he scanned the just-served, stamped notice of intention into the Horowitz office record system and that such record would show the date and time the notice of intention record was scanned, yet claimant did not produce any such record to support either Hicks' affidavit or his Traverse Hearing testimony.

4. Hicks testified that the Horowitz office would have retained the self-addressed return envelope in which the notice of intention was returned by the AG to the Horowitz office sometime between December 26, 2017 and December 29, 2017, yet the return envelope was not produced in claimant's opposition papers or at the Traverse Hearing.

5. Hicks testified that the Horowitz office record system would have documented the return of the notice of intention from the AG sometime between December 26, 2017, and December 29, 2017, yet no such record was produced by claimant in opposition to the motion or at the Traverse Hearing.

6. Claimant never produced his own "identical" copy of the notice of intention attached to defendant's motion papers as Exhibit A, either in his opposition to defendant's motion or at the Traverse Hearing.

7. In preparation for the hearing, Hicks reviewed only the copy of the notice of intention attached to defendant's motion papers as Exhibit A rather than claimant's "identical" copy, which, again, was never produced either in his opposition to defendant's motion or at the Traverse Hearing.

8. Claimant either did not create or did not produce a contemporaneously prepared affidavit of service of Hicks describing his alleged personal service of the notice of intention on the AG on December 29, 2017, even though both Hicks and attorney Horowitz noticed that the stamp allegedly placed on the notice of intention on December 29, 2017 at 120 Broadway was different than the AG personal service stamp they were familiar with from prior personal service of documents on the AG.

Accordingly, the Court concludes that claimant failed to serve the notice of intention on the Attorney General in either of the ways required by Court of Claims Act 11 (a) (i) within ninety days of accrual of the claim on November 16, 2017, and that the claim subsequently served on the Attorney General on June 19, 2019 is untimely pursuant to Court of Claims Act 10 (3).

The defendant's motion to dismiss the claim is granted. The claim is dismissed.

October 1, 2020

Albany, New York

FRANK P. MILANO

Judge of the Court of Claims

Papers Considered:

1. Defendant's Notice of Motion To Dismiss Claim, filed January 9, 2020;

2. Affirmation of Shadi Masri, dated December 17, 2019, and attached exhibits;

3. Affirmation in Opposition of Christopher S. Joslin, dated January 2, 2020, and attached Affidavit of Jamel Hicks, sworn to January 2, 2020;

4. Reply Affirmation of Shadi Masri, dated January 21, 2020, and attached exhibits, including Affirmation of Roxanne E. Wild, dated January 13, 2020;

5. Defendant's Hearing Exhibit 1, consisting of Affirmation of Roxanne E. Wild, dated January 13, 2020, and attached Attorney General electronic record search;

6. Defendant's Hearing Exhibit 2, consisting of stamped copies of claimant's Notice of Intention to File Claim, cover letters and envelopes, stamped copy of Claim, Court of Claims electronic filing Confirmation Notice, defendant's Verified Answer;

7. Defendant's Hearing Exhibit 3, consisting of State of New York Managing Attorney Stamp;

8. Defendant's Hearing Exhibit 4, consisting of Attorney General electronic record search;

9. Claimant's Hearing Exhibit A, consisting of stamped copies of claimant's Notice of Intention to File Claim, cover letters and envelopes;

10. Claimant's Hearing Exhibit B, consisting of stamped copies of Claim, Court of Claims electronic filing Confirmation Notice, and correspondence of Shadi Masri dated July 22, 2019.