4. Filed papers: Claim, filed June 11, 2001.
On June 11, 2001, a claim was filed with the Court seeking $1.4 billion dollars
in damages flowing from the reversal of a Workers Compensation Board decision in
Claimant's favor. Claimant alleges various rights and statutes were violated.
The Claim was assigned Claim No. 104406.
On February 1, 2002, a review of the file revealed that defendant had never
answer to the claim and, consequently, the Court issued an Order to Show Cause
directing both parties to provide statements relating to service of this claim.
Responding for defendant, Carol A. McKay, Senior Clerk in the Albany office of
the Attorney General, conducted a search of the records of that office and
submitted an affidavit regarding the claim number identified in the Order to
Ms. McKay states that the Attorney General received a copy of a letter from the
Court of Claims dated June 11, 2001 (McKay Affidavit, Exhibit A) advising
that a claim, assigned Claim No.104406, had been filed with the Court on June
11, 2001. Ms McKay further stated that in her review of the Department of Law
files she found no record that a claim was ever served upon the Attorney
Claimant's response was to provide a copy of the previously filed affidavit of
service by mail to the Court and to state that "they are not telling the truth"
Court of Claims Act § 11 (a) provides, in relevant part, that a copy of
the claim at issue "shall be served personally or by certified mail, return
receipt requested, upon the attorney general." The requirements set forth in
Court of Claims Act § 11 are jurisdictional in nature and, as such, must be
strictly construed (see, Finnerty v New York State Thruway Auth.,
75 NY2d 721, 722; Commack Self-Serv. Kosher Meats v State of New York, 270
A properly executed affidavit
raises a presumption that a proper mailing occurred (Engel by Engel v
, 62 NY2d 943). However, once jurisdiction and service of process
are questioned, claimant has the burden of proving satisfaction of statutory and
due process prerequisites (see
, Stewart v Volkswagen of America,
81 NY2d 203 [service of process pursuant to BCL § 307]). To
overcome the presumption of delivery which attaches to a properly mailed
letter, the Defendant need provide more than a mere denial of the receipt of
the pleading by mail. Rather, Defendant must also assert probative facts (see,
Electric Insurance Company v Grajower
, 256 AD2d 833; Fairmount
Funding Ltd. v Stefansky
, 235 AD2d 213; East River Savings Bank v
, 229 AD2d 999).
Here, Defendant has met its burden by a sworn denial of service based upon a
review of the records maintained by the Attorney General (see, McKay
Affidavit). Moreover, the Court's review of the filed affidavit of service
reveals that it is facially invalid. In the first instance, the affidavit does
not establish that service was accomplished by certified mail return receipt
requested as required by the Court of Claims Act § 11 (see,
Philippe v State of New York, 248 AD2d 827; Edens v State of New
York, 259 AD2d 729). In addition, the affidavit of service is executed by
"Damien Daniels" while the introductory paragraph states "Bennie Allen being
duly sworn, deposes and says:." Under these circumstances Claimant's "affidavit
of service" will not be viewed by this Court as a "proper affidavit". In the
ordinary course, claimant would be entitled to a traverse hearing to establish
the propriety of service, however, where, as here, Claimant has failed to
produce any probative facts to demonstrate service, i.e. the return
receipt "green card", and persists in relying on a defective affidavit of
service, a hearing is neither warranted nor necessary.
The Court finds that Claimant failed to comply with the requirements of Court
of Claims Act §11(a) in that he failed to serve a copy of the filed claim
on the Attorney General by either of the permitted methods of service.
Accordingly, Claim No. 104406 shall be and hereby is dismissed.