|Claimant short name:||EMANUEL|
|Footnote (claimant name) :|
|Defendant(s):||NEW YORK DEPARTMENT OF MOTOR VEHICLES|
|Footnote (defendant name) :|
|Judge:||JUDITH A. HARD|
|Claimant's attorney:||Elon Emanuel, Pro Se|
|Defendant's attorney:||Hon. Letitia James, Attorney General
By: Lawrence E. Kozar, AAG
|Third-party defendant's attorney:|
|Signature date:||June 29, 2021|
|See also (multicaptioned case)|
Claimant, proceeding pro se, filed the instant claim with the Clerk of the Court on December 14, 2020. On its own motion, the Court issued an Order to Show Cause, dated May 7, 2021 and filed on May 10, 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 submitted several documents in response to the Court's motion, including a certified mail receipt.
"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-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 ; 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 Denise Lantigua, Clerk in the Claims Bureau of the Office of the Attorney General in New York, New York, whose job duties require her to be familiar with the office's record keeping system (Exhibit A [Affidavit of Denise Lantigua], ¶¶ 1-2). Lantigua avers that, upon a search of the office's computer filing system, she found a letter from the Court of Claims acknowledging receipt of the Court's Order to Show Cause, dated May 7, 2021 (Lantigua Aff., ¶ 4 [A]). However, "no record was located establishing that the Office of the Attorney General was served with the either [sic] Notice of Intention or Claim . . ." (id. ¶ 5).
"A properly executed affidavit of service raises a presumption that a proper mailing occurred" (Engel v Lichterman, 62 NY2d 943, 944 ). Here, no Affidavit of Service was filed with the Clerk of the Court. In response to the Court's Order to Show Cause, claimant submitted a copy of a certified mail receipt. However, the copy of the certified mail receipt does not specify to which address a mailing was sent nor does it contain a signature establishing that the mailing was received by the addressee. Additionally, the copy of the certified mail receipt indicates that claimant did not pay additional postage for a return receipt, which is required by Court of Claims Act § 11 (a) (i). Moreover, claimant failed to provide an Affidavit of Service.
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 the papers submitted by claimant are insufficient 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 their 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-96742) is granted. Claim number 135735 is dismissed.
June 29, 2021
Albany, New York
JUDITH A. HARD
Judge of the Court of Claims
1. Order to Show Cause, filed on May 10, 2021.
2. Faxed Documents from Claimant, dated May 26, 2021.
3. Affirmation of Lawrence E. Kozar, AAG, affirmed on June 16, 2021 with Exhibits A and B annexed thereto.