Opinion
# 2015-018-624 Claim No. 123630 Motion No. M-85990
06-04-2015
LEE v. STATE OF NEW YORK
EDDIE JAMES LEE, SR. Pro Se ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Thomas Trace, Esquire of Counsel
Synopsis
Failure to serve the Attorney General results in a failure of subject matter jurisdiction, which precludes this Court from hearing the claim (Finnerty v New York State Thruway Auth., 75 NY2d 721, 722 [1989]; Cudjoe v State of New York, 4 AD3d 322 [2d Dept 2004]). Defendant's motion must be GRANTED and the claim DISMISSED.
Case information
| UID: | 2015-018-624 |
| Claimant(s): | EDDIE JAMES LEE, SR. |
| Claimant short name: | LEE |
| Footnote (claimant name) : | |
| Defendant(s): | STATE OF NEW YORK |
| Footnote (defendant name) : | The Court has amended the caption sua sponte to reflect the State of New York as the only proper defendant. |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 123630 |
| Motion number(s): | M-85990 |
| Cross-motion number(s): | |
| Judge: | DIANE L. FITZPATRICK |
| Claimant's attorney: | EDDIE JAMES LEE, SR. Pro Se |
| Defendant's attorney: | ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Thomas Trace, Esquire of Counsel |
| Third-party defendant's attorney: | |
| Signature date: | June 4, 2015 |
| City: | Syracuse |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Defendant brings this motion to dismiss the claim for lack of personal and subject matter jurisdiction, asserting that it was never served with a copy of the Claim. Claimant opposes the relief.
In support of its position, Defendant submits the Affirmation of Thomas Trace, Esquire, of Counsel to the Attorney General, and the affidavit of Janet Barringer, Senior Clerk in the Albany Office of the Attorney General (Exhibit B). Ms. Barringer's duties require that she be familiar with the record keeping system in the Claims Bureau of the Attorney General's Office for notices of intention to file claim, claims, and motions. Ms. Barringer performed a search of the computer filing system at the Attorney General's Office, and the only documentation of this claim received by the Attorney General's Office, according to Ms. Barringer, was a letter from the Court of Claims dated December 23, 2013, acknowledging receipt of the claim captioned "Eddie James Lee, Sr, 94 B 0823 v Officer Flood Employee for State of New York Correctional Service Department" by the Clerk of the Court of Claims on December 9, 2013 (see Defendant's Exhibit A).
The claim which Claimant alleges accrued on October 27, 2013, seeks damages for injuries to his left ankle, left shoulder, and right wrist when a correction officer ran his wheelchair into a wall. Claimant asserts in the claim, that a notice of intention was served on November 12, 2013. The affidavit of service attached to the claim has all boxes checked for all methods of service (i.e., mailing by certified mail, return receipt requested, delivering to an unidentified person, and mailing in a sealed envelope to the last known address). The affidavit indicates that the claim was served on November 12, 2013.
In order to properly commence an action in the Court of Claims, the claim must be filed with the Clerk of the Court and served upon the Attorney General within 90 days of the date of accrual (Court of Claims Act § 10 [3-b]). Service upon the Attorney General, according to Court of Claims Act section 11 (a) (i), must be by personal service or by certified mail, return receipt requested. The service requirements set forth in Court of Claims Act sections 10 and 11 are jurisdictional prerequisites to commencing an action in this Court (Lichtenstein v State of New York, 93 NY2d 911, 913 [1999]; Dreger v New York State Thruway Auth., 81 NY2d 721 [1992]) It is ultimately Claimant's burden to establish proper service upon the defendant (see Court of Claims Act §§ 10 (3-a) and 11 [a] [i]; Hallston Manor Farm, LLC v Andrew, 60 AD3d 1330, 1331 [4th Dept 2009]; Rox Riv. 83 Partners v Ettinger, 276 AD2d 782 [2d Dept 2000]). Although a proper affidavit of service raises a presumption of proper service, here, the inconsistent and incomplete affidavit of service attached to the claim does not show how service was supposedly made (CPLR 306 [a] and [d]; Engel v Lichterman, 62 NY2d 943 [1984]; Hodge v State of New York, 158 Misc 2d 438, 440 [Ct Cl 1993], affd 213 AD2d 766 [3d Dept 1995]).
Defendant has established, by its sworn denial of service, that it was not served with a copy of the claim (see Rox Riv. 83 Partners v Ettinger, 276 AD2d at 783; Wern v D'Alessandro, 219 AD2d 646 [2d Dept 1995]). Claimant has not adequately rebutted Defendant's denial of service. Although Claimant responded to this motion on December 19, 2014, seeking the denial of Defendant's motion, he indicated he was unable to obtain the proof of disbursement and advance forms in order to rebut Defendant's position. Really, the proof needed is the signed green return receipt card. To date, Claimant has not submitted any further documentation.
The failure to serve the Attorney General results in a failure of subject matter jurisdiction, which precludes this Court from hearing the claim (Finnerty v New York State Thruway Auth., 75 NY2d 721, 722 [1989]; Cudjoe v State of New York, 4 AD3d 322 [2d Dept 2004]).
Defendant's motion must be GRANTED and the claim DISMISSED.
June 4, 2015
Syracuse, New York
DIANE L. FITZPATRICK
Judge of the Court of Claims
The Court has considered the following in deciding this motion:
1) Notice of Motion.
2) Affirmation of Thomas Trace, Esquire, in support, with exhibits attached thereto.
3) An unsigned "Motion in [sic] Rebuke" that was received by the Clerk's Office on December 19, 2014.