Claim dismissed for lack of service on the Attorney General.
|Claimant(s):||KENNETH HARRIS #18A3111|
|Claimant short name:||HARRIS|
|Footnote (claimant name) :|
|Defendant(s):||NEW YORK STATE DEPARTMENT OF CORRECTIONS|
|Footnote (defendant name) :|
|Judge:||W. BROOKS DeBOW|
|Claimant's attorney:||No Appearance|
|Defendant's attorney:||LETITIA JAMES, Attorney General
of the State of New York
By: Charles Lim, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||September 23, 2021|
|See also (multicaptioned case)|
This claim, which was filed with the Clerk of the Court of Claims on May 26, 2020, alleges that claimant slipped and fell on a snow-covered walkway at Greene Correctional Facility on January 2, 2020. No answer was filed with the Court, and the affidavit of service that was filed with the claim failed to indicate the method of service of the claim, prompting the Court to issue this Order to Show Cause, filed on July 23, 2021, which required claimant to demonstrate why this claim should not be dismissed on jurisdictional grounds for lack of service of the claim on the Attorney General, as required by Court of Claims Act § 11 (a). Claimant has not responded to the Order to Show Cause, but the Office of the Attorney General (OAG) has submitted papers in response.
Court of Claims Act § 11 (a) (i) requires service of the claim upon the Attorney General. The Court of Claims Act also requires that service of a claim by mail be accomplished by certified mail, return receipt requested (CMRRR) and that "[s]ervice by [CMRRR], upon the attorney general shall not be complete until the claim or notice of intention is received in the office of the attorney general" (Court of Claims Act § 11 [a] [i] [emphasis added]). It is well established that the filing and service requirements of the Court of Claims Act 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]).
In general, a properly sworn affidavit of service "establishes a prima facie case as to the method of service and, therefore, gives rise to a presumption of proper service" (State of New York v Konikov, 182 AD3d 750, 752 [3d Dept 2020], lv denied 36 NY3d 906  [internal quotation marks omitted]; see Lee v State of New York, UID No. 2015-015-624 [Ct Cl, Fitzpatrick, J., June 4, 2015]). To be sure, as noted above, claimant did file an affidavit of service in which he averred that he served the claim upon the Attorney General by depositing the claim "in a postpaid, properly addressed wrapper in an official depository under the care of the New York State Department of Corrections and Community Supervision at the Greene Correctional Facility" on March 26, 2020 (Harris Affidavit of Service, sworn to March 26, 2020). Claimant's affidavit of service nevertheless fails to raise a presumption of proper service because it does not state that the claim was served by CMRRR and thus does not demonstrate prima facie that service was made in "an authorized manner" (CPLR 306 [a]; see Davis v State of New York, UID No. 2018-038-554 [Ct Cl, DeBow, J., June 19, 2018]).
The affirmation of the Assistant Attorney General (AAG) in response to the Order to Show Cause states that there is no record that the OAG was ever served with a notice of intention to file a claim or the claim (see Lim Affirmation, ¶ 3), but it was served with claimant's motion for late claim relief with respect to an identical claim, which was denied (see id., ¶ 4; Exhibits A-C). The OAG also submits the affidavit of Debra L. Mantell, a Legal Assistant II employed by the OAG, who avers that on or about August 25, 2020, the OAG received correspondence from the Court of Claims dated August 25, 2020, stating that the claim had been filed with the Court on May 26, 2020 (see Mantell Affidavit, ¶ 5). Mantell avers that a search of the OAG's digital case management system failed to locate any record that the OAG had been served with the claim (see id.). Mantell further avers that upon receipt of the claim from the Clerk of the Court of Claims, a second search of the OAG's digital case management system again failed to locate any record that the OAG had been served with a notice of intention or a claim with regard to the allegations set forth in the claim that was filed with the Court on May 26, 2020 (see id. at ¶¶ 6-7).
Defendant's submission demonstrates prima facie that the claim was not served on the Attorney General as required by Court of Claims Act § 11 (a) (i), and by failing to respond to the Order to Show Cause, claimant has failed to rebut that showing. Because it has not been shown that the claim was served upon the Attorney General as required by Court of Claims Act § 11 (a) (i), the Court's jurisdiction over the claim has not been established, and the claim must be dismissed.
Accordingly, it is
ORDERED, that upon motion number M-97001, claim number 134677 is DISMISSED.
September 23, 2021
Saratoga Springs, New York
W. BROOKS DeBOW
Judge of the Court of Claims
1. Claim number 134677, filed May 26, 2020;
2. "Affidavit in Service" of Kenneth Harris, sworn to March 26, 2020;
3. Order to Show Cause (M-97001), filed July 23, 2021;
4. Affirmation of Charles Lim, AAG, in Response to Order to Show Cause, dated September 2,
2021, with Exhibits A-C;
5. Affidavit of Debra L. Mantell, sworn to August 18, 2021;
6. Affidavit of Service of Tara K. Matthews, sworn to September 2, 2021.