New York State Court of Claims

New York State Court of Claims

MALLOY v. THE STATE OF NEW YORK, #2000-001-041, Claim No. 99128 and 50 additional claims, Motion No. M-61513


The Court's motion for a determination regarding service of these 51 claims is such that all but one claim is dismissed because of improper service on defendant.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
99128 and 50 additional claims See Appendix at the end of this decision for a complete list of Claim numbers referred to and decided on in this decision.
Motion number(s):
Cross-motion number(s):

Susan Phillips Read
Claimant's attorney:
Anthony Malloy, Pro Se
Defendant's attorney:
Hon. Eliot Spitzer, NYS Attorney GeneralBy: Glenn C. King, Esq, Assistant Attorney General, Of Counsel
Third-party defendant's attorney:

Signature date:
August 4, 2000

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers were read and considered on the Court's motion for a determination regarding service of these claims: Order to Show Cause, dated April 13 and filed April 13, 2000; Affidavit of Anthony Malloy, pro se, dated April 18 and filed April 24, 2000; Affirmation of Glenn C. King, Esq., AAG, dated May 17 and filed May 19, 2000, with annexed Exhibit 1; and Affirmation (sic) of Anthony Malloy, pro se, dated May 19 and filed May 25, 2000.

By an Order to Show Cause issued April 13, 2000, the Court directed both parties to submit written statements and any relevant proof to establish whether the fifty-one claims listed above were served on the Attorney-General in accordance with the requirements of section 11 (a) of the Court of Claims Act, that is, by personal service or by certified mail, return receipt requested. Defendant State of New York ("defendant" or "the State") was advised to provide a statement of someone with personal knowledge of the contents of files and records of the Department of Law ("DOL"), and claimant Anthony Malloy ("claimant") was directed to submit either affidavits establishing personal service or copies of certified mail, return receipts.

In response to the Court's order, defendant has provided the affidavit of Carol A. McKay, Senior Clerk in the Albany Office of the Attorney-General. Ms. McKay states that as part of her job duties she is familiar with the recordkeeping system of the Claims Bureau, specifically, with records regarding notices of intention and claims in actions in the Court of Claims (Affirmation of Glenn C. King, Esq., AAG, dated May 17 and filed May 19, 2000, Exh. 1 [Affidavit of Carol A. McKay]). Ms. McKay further states that she made a thorough search of relevant files and found fifty-one letters from the Court of Claims acknowledging claims received by the Court and naming Anthony Malloy as the claimant and designating the claim numbers listed above. These letters from the Court of Claims were given DOL identification numbers, which are set out in an attachment to her affidavit; however, Ms. McKay states that she found no record that any of these claims had ever been served on the Attorney-General.

Claimant has submitted two responses to the Order to Show Cause. In the first (Affidavit of Anthony Malloy, dated April 18 and filed April 24, 2000), claimant acknowledges that the first seventeen claims (No. 099128 through No. 101184) were not properly served and concedes that they should, indeed, be dismissed. With respect to the next seventeen claims (No. 101265 through No. 101887), claimant states:
Every Claim - Notice of Intention to File an claim, "was served upon the Attorney Generals Office in Albany, New York, upon Senior Clerk Ms Carol McKay attached with to every Notice of Intention to file an claim" was an "Affidavit of Personal Service" and Green Cards of Certified Mail" for her to sign and stamp, print, name, signature, Date, Time and place, She never - "Never" send each of the Affidavit of Personal Service nor Green Cards back to me." [sic]
, ¶ 2.)

From this and other statements made by claimant, the Court infers that he mistakenly expected an employee of the Attorney-General's Office to provide him, and possibly this Court, with proof of service. This, of course, is simply not how proof of service works.

Section 11 (a) of the Court of Claims Act permits two methods of service on the Attorney-General. If personal service is used, an individual--usually a process server--physically takes the claim or notice of intention to an Assistant Attorney-General and then completes and signs an affidavit of service and returns it to the claimant; if service is made by certified mail, return receipt requested, the green receipt card is signed by a DOL employee--perhaps Ms. McKay, perhaps someone else--but custody of the card always remains with the U.S. Postal Service, which returns the signed card to the sender-claimant. Under no circumstances would a DOL employee be expected, or allowed, to create and serve proof of service on the Attorney-General's Office. In any event, claimant states in this response only that the notices of intention were served on the Attorney-General, not that the claims were served.

In claimant's second submission (Affirmation [sic] of Anthony Malloy, dated May 19 and filed May 25, 2000), he asserts that notices of intention for some of these claims were sent to Assistant Attorneys General Joel L. Marmelstein and Ellen Leary Coccoma, apparently with the same erroneous expectation that those individuals would complete and return affidavits of service. As indicated above, however, DOL employees are not responsible for creating, returning to claimant or filing with the Court proof that a document has been served on their office. In this latter submission, claimant also states the following with respect to the thirty-four claims with numbers between 101265 and 102219:

From no. 18 [Claim No. 101265] to 51 [Claim No. 102219] I file each claim right so I declare 18-51 to be never dismiss and that Senior Clerk Carol A. McKay does have record at her office of the claims – Notice of intention, plus original copy of the Notice of Motions and Affidavit of Personal Services.

It is unclear whether, by this statement, he is referring to the claims or the notices of intention as having been properly served. This bald assertion, however, does not supply sufficient proof, even if claimant is referring to the claims. As stated in the Order to Show Cause, claimant is required to provide either an affidavit of personal service or a completed return receipt in order to establish proper service.

Finally, claimant states that he is including in his response signed and stamped "green cards" with respect to Claims Nos. 102083, 102084, and 102085. These claims were filed with the Court on March 8, 2000 (attachment, Order to Show Cause). The only receipt cards attached to claimant's submission are the following:
(1) an undated "Receipt for Certified Mail" No. Z-261-649-262, with claimant's name written on the side and "Elmira Correctional Facility" stamped in the back, evidencing payment of $2.98 for mail sent to the New York State Court of Claims;

(2) an undated "Receipt for Certified Mail" No. Z-261-649-264, with claimant's name written on the side and "Elmira Correctional Facility" stamped on the back, evidencing payment of $2.98 for mail sent to the State of New York Department of Law;

(3) a certified mail return receipt (green card) showing that Article No. Z-261-649-262 was received on March 27, 2000 by the New York State Court of Claims; and

(4) a certified mail return receipt (green card) showing that Article No. Z-261-649-264 was received on March 27, 2000 by the Office of the Attorney-General, Appeals Bureau Docket Clerk in Albany.

According to the Court's own records, these receipts do not appear to relate to the three claims mentioned by claimant, which--as noted--were filed on March 8, 2000. If they relate to any of the identified claims, Claim No. 102189-A, which was filed with the Court on March 27, 2000, is the only plausible candidate. In fact, the Court's records reveal that the envelope in which Claim No. 102189-A was filed bears a certified mail, return receipt sticker for Article No. Z-261-649-262. It is possible, of course, that the receipt stamped by the Attorney-General's Office does not relate to this claim, but to a notice of intention or a claim in some action not listed above. Nevertheless, claimant has provided proof of proper filing of Claim No. 102189-A with the Court and perhaps proof of proper service of it on the Attorney-General.

On the basis of the submissions presented in response to the Court's Order to Show Cause, the Court dismisses all of the claims set forth in the caption of this decision, with the exception of Claim No. 102189-A, because of improper service on defendant. Defendant is directed to file and serve its answer to Claim No. 102189-A within forty days of the date this decision is filed; the answer may include the defense of improper service.

August 4, 2000
Albany, New York

Judge of the Court of Claims


099131, 099132, 099133, 099134, 099142, 099212, 099320, 099387, 099770, 099931, 099932, 100463, 100903, 101152, 101153, 101184, 101265, 101583, 101584, 101585, 101586, 101587, 101588, 101589, 101608, 101659, 101782, 101815, 101816, 101836, 101885, 101886, 101887, 101925, 101926, 101969-A, 101995-A, 101996-A, 101997-A, 102055-A, 102083, 102084, 102085, 102189-A, 102214, 102215, 102216, 102217, 102218, 102219