(1) ">

New York State Court of Claims

New York State Court of Claims
COBB v. STATE OF NEW YORK (1), # 2021-032-056, Claim No. 134655, Motion No. M-96521

Synopsis

Case information

UID: 2021-032-056
Claimant(s): JAMES ANDREW COBB, JR.
Claimant short name: COBB
Footnote (claimant name) :
Defendant(s): STATE OF NEW YORK(1)
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 134655
Motion number(s): M-96521
Cross-motion number(s):
Judge: JUDITH A. HARD
Claimant's attorney: NO APPEARANCE
Defendant's attorney: Hon. Letitia James, Attorney General
By: Glenn C. King, AAG
Third-party defendant's attorney:
Signature date: June 29, 2021
City: Albany
Comments:
Official citation:
Appellate results:
See also (multicaptioned case)

Decision

Claimant, an inmate proceeding pro se, filed the instant claim with the Clerk of the Court on May 26, 2020. On its own motion, the Court issued an Order to Show Cause, dated February 26, 2021 and filed on March 9, 2021, directing the parties to submit statements relating to service of the claim as claimant may have failed to comply with the service requirements of Court of Claims Act 11. Defendant submitted an affirmation in response to the Court's motion. Claimant has not submitted any papers in response.

"A claimant seeking to recover damages for personal injuries caused by the negligence, intentional tort or unintentional tort of an officer or employee of the State must file and serve a claim or, alternatively, a notice of intention to file such a claim, upon the Attorney General within 90 days after the accrual thereof" (Maude V. v New York State Off. of Children & Family Servs., 82 AD3d 1468, 1469 [3d Dept. 2011]; see Court of Claims Act 10 [3], [3-b]). Court of Claims Act 11 (a) (i) provides that a "claim shall be filed with the clerk of the court; and . . . a copy 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." "[A]s suits against defendant are permitted only by virtue of its waiver of sovereign immunity and are in derogation of the common law, the failure to strictly comply with the filing or service provisions of the Court of Claims Act divests the court of subject matter jurisdiction and compels dismissal of the claim" (Caci v State of New York, 107 AD3d 1121, 1122 [3d Dept. 2013] [internal quotation marks and citations omitted]; see Finnerty v New York State Thruway Auth., 75 NY2d 721, 722-723 [1989]; Rodriguez v State of New York, 307 AD2d 657, 657 [3d Dept. 2003]). Once challenged, the burden is upon the claimant to establish proper service by a preponderance of the credible evidence (see Caci v State of New York, 107 AD3d at 1124; Boudreau v Ivanov, 154 AD2d 638, 639 [2d Dept. 1989]; Aquila v Aquila, 129 AD2d 544, 545 [2d Dept. 1987]).

In response to the Court's Order to Show Cause, defendant has submitted an affidavit sworn to by Debra L. Mantell, a Legal Assistant II in the Office of the Attorney General (OAG) in Albany, New York, (Affirmation of Glenn C. King, AAG, Ex. A), who is familiar with the office's digital case management system (Mantell Aff. 1-2). Mantell avers that, on August 4, 2020, the OAG received a letter from the Court of Claims, dated July 30, 2020, informing the OAG that the Court of Claims had received and filed the instant claim on May 26, 2020 (id. 5). Per OAG business practice, a search of the digital case management system was performed in order to locate any record that the OAG was served with the claim to which the letter referred (id.). The search located no such record, and the letter was recorded in the digital case management system as "unmatched" (id.). On April 15, 2021, the OAG sent an e-mail to the Court of Claims requesting a copy of the filed document referenced in the Court's July 30, 2020 letter (id. 6). Upon receiving a copy of the claim filed in this action and noting its contents, another search was performed, however the "OAG's digital case management system disclosed no record that the Attorney General received a Notice of Intention to File a Claim and/or Claim [from claimant] for an incident that occurred . . . on or about December 16, 2019" (id. 8).

"A properly executed affidavit of service raises a presumption that a proper mailing occurred" (Engel v Lichterman, 62 NY2d 943, 944 [1984]). However, where the affidavit of service filed with the Court is defective, a claimant cannot rely on it to establish proper service (Allen v State of New York, UID No. 2002-028-014 [Ct Cl, Sise, J., Mar. 21, 2002]). Upon inspection, the Court finds that the filed Affidavit of Service for the instant claim is facially defective in that it fails to state that a claim was served upon the OAG by certified mail, return receipt requested (see id.). The Affidavit of Service also fails to state what document was allegedly served upon the Attorney General. Thus, the Affidavit of Service is not "properly executed" (see Engel v Lichterman, 62 NY2d at 944).

In light of the exhibit submitted by defendant, the Court finds that defendant has set forth sufficient facts showing that the claim was not served upon it. Because claimant has offered no evidence to dispute defendant's assertion that the claim was not properly served upon the Attorney General, the Court finds that claimant has failed to meet his burden of establishing proper service (see Court of Claims Act 11 [a] [i]; Caci v State of New York, 107 AD3d at 1123-1124; Allen v State of New York, UID No. 2002-028-014 [Ct Cl, Sise, J., Mar. 21, 2002]). Accordingly, the claim must be dismissed (see Finnerty v New York State Thruway Auth., 75 NY2d at 723).

Based upon the foregoing, the Court's motion (M-96521) is granted. Claim number 134655 is dismissed.

June 29, 2021

Albany, New York

JUDITH A. HARD

Judge of the Court of Claims

Papers Considered:

1. Order to Show Cause, filed on March 9, 2021.

2. Affirmation of Glenn C. King, AAG, affirmed on May 3, 2021 with Exhibit A annexed thereto.

1. The Court amends the caption sua sponte to reflect the only properly named defendant.