New York State Court of Claims

New York State Court of Claims

LEE v. THE STATE OF NEW YORK DEPARTMENT OF CORRECTIONAL SERVICES, #2002-005-538, Claim Nos. 101294, 101325, 101326, Motion Nos. M-65186, M-65203


Synopsis


Claimant's motions to reinstate previously dismissed claims are denied.

Case Information

UID:
2002-005-538
Claimant(s):
EDDIE JAMES LEE, SR.
Claimant short name:
LEE
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK DEPARTMENT OF CORRECTIONAL SERVICES
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
101294, 101325, 101326
Motion number(s):
M-65186, M-65203
Cross-motion number(s):

Judge:
DONALD J. CORBETT, JR.
Claimant's attorney:
Eddie James Lee, Sr.,Pro Se
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Heather R. Rubinstein, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
August 23, 2002
City:
Rochester
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

On June 12, 2002, the following papers, numbered 1 to 9, were read on motions by Claimant for an order restoring claims:

1, 2, 3 Notices of motion, Affidavit (sic) and Exhibits Annexed
  1. Letter in Opposition from Defendant dated June 7, 2002
5, 6 "Motion" and Affidavit in Response by Claimant

7, 8, 9 Filed Papers: Claims

Upon the foregoing papers, these motions are denied.

In the current proceedings before the Court, Claimant seeks an order reinstating Claim Nos. 101294, 101326 and 101325. A brief historical retrospective is instructive.

First, as to Claim No. 101294, it was dismissed in an order in Motion No. M-64719 signed on March 13, 2002, on jurisdictional grounds, as there was no record of this claim having been served. I found that there was evidence that on September 7, 1999, a Notice of Intention to file a Claim was served, and while the claim itself was filed on October 25, 1999, no proof of service upon the Defendant was presented. I further noted that "Claimant's opposition ignores Defendant's assertions and does not refute the undisputed allegations that no claim in this matter has been served upon the Defendant," and dismissed the claim.

Second, as to Claim 101326, it was dismissed in an order in Motion No. M-64735 signed on March 13, 2002, as there was no record of this claim having been served. I noted that that claim was filed on October 29, 1999, and that a review of the court's file revealed that a copy of a receipt for certified mail and a copy of the green return receipt card reflecting receipt by the Defendant on November 16, 1998, were appended to the claim. However, there was no description as to what document was served on November 16, 1998, and the Defendant does not refer to any Notice of Intention to file a claim, and in any event there is nothing in the Court's files reflecting service of the claim which was filed on October 29, 1999. Since Claimant failed to refute the allegations of non-service of the claim and did not provide any proof of service of the claim itself as required by Court of Claims Act §11(a), as he did with the green card reflecting service by certified mail, return receipt requested on November 16, 1998, presumably of the putative Notice of Intention, that claim was dismissed.

Similarly, in Claim No. 101325, it was dismissed in an order in Motion No. M-64734 signed on March 13, 2002, again because there was no record of any claim having been served. Claim No. 101325 was filed on October 29, 1999, and as Claimant failed to refute the allegations of non-service and did not provide any proof of service of the claim itself as required by Court of Claims Act §11(a), the motion was granted.

In each earlier motion, Claimant basically ignored the substance of the motion and provided nothing to refute Defendant's allegations of the failure to have served any of the three claims upon the State of New York. Claimant suggests that the motions to dismiss were brought while he was in the infirmary, and thus the State tried to take advantage of his situation. Claimant provided written opposition to each of the motions, and his suggestions in that regard are totally rejected.

With respect to Claim No. 101294, Claimant now suggests that it was "filed" [sic] with the Defendant on July 28, 2000. The claim itself was filed with the Clerk on October 25, 1999, and now Claimant supplies copies of green return receipt cards reflecting service of mail on the Defendant on September 7, 1999 and July 28, 2000, both purportedly involving Claim No. 101294. I had already found that there was evidence that on September 7, 1999, a Notice of Intention to file a Claim was served. However the claim itself was filed on October 25, 1999, and there is nothing to support Claimant's contention that he served a claim on July 28, 2000, which he had filed October 25, 1999. First I find these copies to be unpersuasive, particularly as the purported service was some nine months after the filing. Second, these records were in the possession of the Claimant at the time of the original motion, and he did not bring them to the Court's attention. Claimant does not argue that I overlooked or misapprehended the law, or that there exists new facts not available previously (CPLR 2221). I adhere to my decision dismissing Claim No. 101294.

With respect to Claim 101326, Claimant now suggests that it was "filed" (sic) with the Defendant on August 10, 2000. The claim itself was filed with the Clerk on October 29, 1999, and now Claimant supplies copies of green return receipt cards reflecting service of mail on the Defendant on November 16, 1998 and August 10, 2000, both purportedly involving Claim No. 101326. The green card reflecting service by certified mail, return receipt requested on November 16, 1998, presumably is a Notice of Intention. However the claim itself was filed on October 29, 1999, and there is nothing to support Claimant's contention that he served a claim on August 10, 2000, which he had filed October 29, 1999. First I find these copies to be unpersuasive, particularly as the purported service was some 11 months after the filing. Second, these records were in the possession of the Claimant at the time of the original motion, and he did not bring them to the Court's attention. Claimant does not argue that I overlooked or misapprehended the law, or that there exists new facts not available previously (CPLR 2221). I adhere to my decision dismissing Claim No. 101326.

With respect to Claim No. 101325, Claimant now suggests that a Notice of Intention to file a claim was served on July 13, 1999 and again in October 19, 1999, although the documents appended to the moving papers suggest that the same occurred on July 20, 1999. Claimant appends a copy of a receipt for certified mail apparently dated November 16, 1999, but does not include a return receipt card, reflecting actual service. While this is a more proximate date compared to the filing date of the claim with the Clerk on October 29, 1999, service is still not established as no return receipt card is presented, and would still be several weeks after filing. Regardless, the claim itself was filed on October 29, 1999, and there is nothing to corroborate Claimant's contention that he served this claim in November of 1999. First, the absence of the return receipt card is compelling. Second, these copies and arguments were available to Claimant at the time of the original motion, and he did not bring them to the Court's attention. Claimant does not argue that I overlooked or misapprehended the law, or that there exists new facts not available previously (CPLR 2221). I adhere to my decision dismissing Claim No. 101325.

The instant motions are denied.


August 23, 2002
Rochester, New York

HON. DONALD J. CORBETT, JR.
Judge of the Court of Claims