Opinion
# 2020-053-501 Claim No. 132291 Motion No. M-94665
01-03-2020
CARLOS SANCHEZ v. THE STATE OF NEW YORK
CARLOS SANCHEZ, Pro Se HON. LETITIA JAMES New York State Attorney General BY: Carlton K. Brownell, III, Esq. Assistant Attorney General
Synopsis
The State's motion for summary judgment is granted and the claim alleging malicious prosecution is dismissed.
Case information
| UID: | 2020-053-501 |
| Claimant(s): | CARLOS SANCHEZ |
| Claimant short name: | SANCHEZ |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 132291 |
| Motion number(s): | M-94665 |
| Cross-motion number(s): | |
| Judge: | J. DAVID SAMPSON |
| Claimant's attorney: | CARLOS SANCHEZ, Pro Se |
| Defendant's attorney: | HON. LETITIA JAMES New York State Attorney General BY: Carlton K. Brownell, III, Esq. Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | January 3, 2020 |
| City: | Buffalo |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
On November 20, 2018, pro se claimant Carlos M. Sanchez filed and served claim no. 132291 seeking to recover damages for false arrest, false imprisonment, malicious prosecution, negligent and /or intentional infliction of emotional distress, defamation, libel and slander, negligent hiring and training, and for violation of his civil rights under 42 U.S.C. 1983. In lieu of answering the claim, defendant moved to dismiss the claim. By decision and order dated June 28, 2019, this Court dismissed all causes of action in the claim with the exception of claimant's cause of action for malicious prosecution (see Sanchez v State of New York, Defendant's Exhibit C]). Defendant now moves for summary judgment, dismissing the remaining claim for lack of jurisdiction. Claimant failed to respond or otherwise oppose defendant's motion.
Pursuant to Court of Claims Act § 11 (a) (i), a claim shall be filed and a copy served upon the attorney general personally or by certified mail, return receipt requested. The filing and service requirements of the Court of Claims Act are jurisdictional in nature and must be strictly construed (Dreger v New York State Thruway Auth., 81 NY2d 721 [1992]; Finnerty v New York State Thruway Auth., 75 NY2d 721 [1989]). The failure to comply with the filing and service requirements of the Court of Claims Act deprives the Court of jurisdiction, requiring dismissal of the claim (Ivy v State of New York, 27 AD3d 1190 [4th Dept 2006]; Hodge v State of New York, 213 AD2d 766 [3d Dept 1995]).
Claimant attempted service of a notice of intention to file a claim on November 20, 2017 and of claim no. 132291 on November 20, 2018 by personally serving the notice of intention and then the claim upon the Attorney General's Office. Defendant moves for summary judgment dismissing the claim on the grounds that the attempted personal service of the notice of intention and of the claim were both made by claimant himself in violation of CPLR 2103 (a). Pursuant to CPLR 2103 (a), "papers may be served by any person not a party of the age of eighteen years or older." This provision prohibits a claimant from serving his own papers. It has been held that this error is jurisdictional and requires dismissal of the claim (see Matter of Hawkins v Szczesniak, 309 AD2d 1307 [4th Dept 2003]; Woods v State of New York, UID No. 2011-013-001 [Ct Cl, Patti, J., Jan. 6, 2011]).
While defendant did not raise the manner of service issue in its pre-answer motion to dismiss, it did assert it with particularity as an affirmative defense in its answer (Defendant's Exhibit D). Court of Claims Act § 11 (c) provides that any objection or defense based upon a failure to comply with the manner of service requirements of subdivision (a) (i) of this section shall be waived if not raised "either by a motion to dismiss made before service of the responsive pleading is required or in the responsive pleading . . ." Here, defendant chose to raise the issue in its responsive pleading, i.e., its answer and, thus, did not waive this objection.
In support of its motion, defendant attaches two affidavits regarding the service of claimant's notice of intention and of the claim. The first affidavit is by Christine Schwarzott who was employed as a Law Department Document Specialist working at the reception desk in the Buffalo Regional Office of the Attorney General's Office accepting personal service of documents on November 20, 2017. According to her affidavit, at about 4:20 p.m. on November 20, 2017, a person identifying himself as Carlos Sanchez hand delivered a notice of intention to file a claim for service in the matter of Carlos M. Sanchez v State of New York. Ms. Schwarzott memorialized this service by noting on the upper right hand corner of the first page of the notice of intention the date and time of the attempted service, the name of the person making the service, and her own name as the person accepting service (see Exhibit A to the affidavit of Ms. Schwarzott). This same information was recorded in the Attorney General's personal service log for the date of November 20, 2017 (see Exhibit B to the affidavit of Ms. Schwarzott).
The second affidavit attached to defendant's motion papers is by Anne Reberholt who was employed by the Buffalo Regional Office of the Attorney General's Office as a Law Department Document Specialist on November 20, 2018. According to her affidavit, at 4:42 p.m. on November 20, 2018, a person who identified himself as Carlos Sanchez hand delivered a claim for service in the matter of Carlos M. Sanchez v State of New York. Ms. Reberholt memorialized this service by noting on the upper right hand corner of the first page of the claim the date and time of the attempted service, the name of the person making the service, and her own name as the person accepting service (see Exhibit A to the affidavit of Ms. Reberholt). This same information was recorded in the Attorney General's personal service log for the date of November 20, 2018 (see Exhibit B to the affidavit of Ms. Reberholt).
Claimant has the burden of establishing proper service (Hallston Manor Farm, LLC v Andrew, 60 AD3d 1330 [4th Dept 2009]; Boudreau v Ivanov, 154 AD2d 638 [2d Dept 1989]). Here, claimant failed to file an affidavit of service with the Court of Claims as required by Uniform Rules for the Court of Claims § 206.5 (a), and failed to appear or offer any evidence regarding the manner of service of the notice of intention or of the claim. The only evidence presented was by the defendant which shows that the claimant himself, and not a "person not a party" to the claim as required by CPLR 2103 (a), personally delivered the notice of intention and the claim to the Attorney General's Office in an attempt to effectuate proper service upon the defendant. As the attempted service was jurisdictionally defective, the claim must be dismissed. This Court declines to consider any other grounds for summary judgment raised in defendant's papers.
Accordingly, defendant's motion for summary judgment, motion no. M-94665 is granted and claim no. 132291 is dismissed in its entirety.
January 3, 2020
Buffalo, New York
J. DAVID SAMPSON
Judge of the Court of Claims The following were read and considered by the Court: 1. Notice of motion and supporting affidavit of Assistant Attorney General Carlton K. Brownell, III dated September 12, 2019, with annexed Exhibits A-F, the affidavit of Christine Schwarzott sworn to September 9, 2019, with annexed Exhibits A-B, and the affidavit of Anne Reberholt sworn to September 9, 2019, with annexed Exhibits A-B.