Opinion
# 2017-032-024 Claim No. 128243 Motion No. M-89730
05-01-2017
LYUBOV YEFIMOVA v. THE STATE OF NEW YORK
Lyubov Yefimova, Pro Se Hon. Eric T. Schneiderman, NYS Attorney General By: Joseph L. Paterno, Assistant Attorney General, Of Counsel
Synopsis
The claim is dismissed for failure to comply with the service requirements of Court of Claims Act § 11.
Case information
| UID: | 2017-032-024 |
| Claimant(s): | LYUBOV YEFIMOVA |
| Claimant short name: | YEFIMOVA |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 128243 |
| Motion number(s): | M-89730 |
| Cross-motion number(s): | |
| Judge: | JUDITH A. HARD |
| Claimant's attorney: | Lyubov Yefimova, Pro Se |
| Defendant's attorney: | Hon. Eric T. Schneiderman, NYS Attorney General By: Joseph L. Paterno, Assistant Attorney General, Of Counsel |
| Third-party defendant's attorney: | |
| Signature date: | May 1, 2017 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant filed the instant claim with the Clerk of the Court on July 20, 2016. The claim was not accompanied by an Affidavit of Service, and proof of service of the claim upon the Attorney General was not filed with the Clerk of the Court (see 22 NYCRR 206.5 [a]). On its own motion, the Court issued an Order to Show Cause, dated January 3, 2017 and filed on January 6, 2017, directing claimant to demonstrate why the claim should not be dismissed for lack of jurisdiction based upon claimant's failure to comply with the service requirements of Court of Claims Act § 11. The Order to Show Cause was served upon claimant by first class mail, in accordance with the directives of that order, at the last address provided by claimant. As of the date of this Decision and Order, claimant has not responded to the Order to Show Cause and issue has not been joined in the action. In an affidavit sworn to by Min Chul Rhee, Clerk/Legal Assistant in the Claims Bureau of the Attorney General's Office in Albany, New York, defendant avers that it was never served with a claim or a notice of intention to file a claim in this matter (Exhibit A).
As relevant here, 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 [State of New York] 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 [1989]; 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]).
Here, the Court finds that the facts, as stated above, constitute sufficient proof that the claim was not, in fact, served upon defendant (see Cooper v State of New York, UID No. 2014-038-509 [Ct Cl, DeBow, J., Feb. 24, 2014]; Ramirez v State of New York, UID No. 2008-038-592 [Ct Cl, DeBow, J., Apr. 1, 2008]). Thus, the claim is jurisdictionally defective and must be dismissed (see Finnerty v New York State Thruway Auth., 75 NY2d at 722-723; Cudjoe v State of New York, 4 AD3d 322, 323 [2d Dept 2004]; Pagano v New York State Thruway Auth., 235 AD2d 408 [2d Dept 1997], lv denied 90 NY2d 804 [1997]; Ramirez v State of New York, UID No. 2008-038-592 [Ct Cl, April 1, 2008, DeBow, J.]).
Accordingly, it is
ORDERED, that the Court's motion (M-89730) is granted and the claim (no. 128243) is dismissed.
May 1, 2017
Albany, New York
JUDITH A. HARD
Judge of the Court of Claims Papers Considered: 1. Claim, filed on July 20, 2016. 2. Affirmation, affirmed by Joseph L. Paterno, AAG, on January 18, 2017, with exhibit.