Court OSC re: service. Claimant failed to establish that he served the Claim upon Defendant. Claim dismissed.
|Claimant short name:||BELLOISI|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||CHRISTOPHER J. McCARTHY|
|Claimant's attorney:||Stefano Belloisi, Pro Se|
|Defendant's attorney:||LETITIA JAMES
Attorney General of the State of New York
By: Albert D. DiGiacomo, Esq., AAG
|Third-party defendant's attorney:|
|Signature date:||September 7, 2021|
|See also (multicaptioned case)|
By Order to Show Cause, originally returnable July 14, 2021, and adjourned to August 25, 2021 at Claimant's request, the Court noted that Claimant may have failed to comply with the service requirements of Section 11 of the Court of Claims Act. The parties were ordered to submit a written statement relating to service of the Claim. The Order to Show Cause also stated that, if the State wished "to assert that the Claim was not served on the Attorney General, that statement should come from someone with personal knowledge of the contents of files and records of the Department of Law."
The Claim was filed in the office of the Clerk of the Court on October 31, 2019 and was assigned to the Individual Assignment Calendar of the undersigned by Order of Acting Presiding Judge Richard E. Sise, dated November 20, 2020. The State did not file a verified answer to the Claim.
In response to the Order to Show Cause, Claimant submitted a copy of the Affidavit of Service attached to his filed Claim that states that he mailed a copy of the Claim, by certified mail, return receipt requested, from Cape Vincent Correctional Facility to the Office of the Attorney General, Department of Law, The Capitol, Albany, NY 12224, and to the Chief Clerk of the Court of Claims, PO Box 7344, Capitol Station, Albany, NY 12224. He also submitted a copy of the acknowledgment letter he received from the Clerk of the Court, dated November 18, 2019, stating that his Claim was received by the Court and was assigned Claim No. 133887, and a copy of an Order signed by the Acting Presiding Judge which reduced Claimant's filing fee to $45.00.
In response to the Court's Order, Defendant submitted the Affidavit of Debra L. Mantell, a Legal Assistant II in the Albany Office of the Attorney General. Ms. Mantell attests that she is familiar with the digital case management system of the Attorney General's office regarding notices of intention to file claims, claims, and motions that are received from the Court of Claims or received in the Attorney General's office. She further attests that, upon a search of the records of the New York State Attorney General's office, no record was found that a Notice of Intention to File a Claim and/or a Claim in this matter has/have been served on the Attorney General.
In Reply to Defendant's affidavit, Claimant submitted a copy of the U.S. Postal Service tracking receipt showing that Tracking Number 70163010000044218971, which was mailed from Cape Vincent, New York on October 28, 2019, and was delivered at 7:23 a.m. on October 31, 2019 to Albany, New York 12224. Claimant also submitted a copy of a mail log sheet from Cape Vincent Correctional Facility, which he asserts is evidence "that [his Claim] was served." However, the mail log establishes that, on October 28, 2019, Mr. Belloisi mailed an item with Tracking Number 70163010000044218971, to the Court of Claims, Albany NY, Empire State Plaza, PO Box 7344. This row of information is highlighted in yellow marker. This information establishes that Claimant filed the Claim with the Court of Claims, not that the Claim was served upon the Office of the Attorney General. There is no information included on the mail log sheet provided to the Court that Claimant mailed anything to the Office of the Attorney General. Claimant has not submitted any documentation to establish that Office of the Attorney General was served with the Claim as required by Court of Claims Act § 11.
Claimant has not provided any proof of service of the Claim upon the State of New York.
Accordingly, it is:
ORDERED that this Claim is dismissed.
September 7, 2021
Albany, New York
CHRISTOPHER J. McCARTHY
Judge of the Court of Claims
The following papers were read and considered by the Court:
Order to Show Cause 1
Claimant's Response & Exhibits attached 2
Letter from Albert D. DiGiacomo, Esq., Assistant
Attorney General, & Exhibit attached 3
Claimant's Reply letter & Exhibits attached 4
Defendant's Reply letter 5
Filed Papers: Claim