New York State Court of Claims

New York State Court of Claims

ALLEN v. THE STATE OF NEW YORK, ET ANO, #2002-028-014, Claim No. 104406, Motion No. M-64652


Court's Order to Show Cause - Court directed parties to address Claimant's apparent failure to comply with the service requirements of Court of Claims Act section 11. Defendant established no service. Claims dismissed.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant's attorney:
Defendant's attorney:
BY: Eileen E. Bryant, Esq. Assistant Attorney General
Third-party defendant's attorney:

Signature date:
March 21, 2002

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers were read on the Court's motion, brought on by Order to Show Cause, for clarification from the parties regarding service of this claim.

1. Order to Show Cause, filed on February 5, 2002;

2. Affidavit of Carol A. McKay, sworn to on the 11th day of February, 2002 with annexed
Exhibit A (McKay Affidavit)

3. Letter in opposition from Bennie Allen (Allen Letter) received February 15, 2002 .

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 filed an

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 Show Cause.

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 General.

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" (Allen Letter).

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 AD2d 687).

A properly executed affidavit[1] of service raises a presumption that a proper mailing occurred (Engel by Engel v Lichterman, 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, Inc. 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 Curtis, 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.

March 21, 2002
Albany, New York

Judge of the Court of Claims

[1] A proper affidavit is a sworn statement which ordinarily begins with its venue, an opening statement, a recitation and a signature, subscribed and sworn to before a person authorized to administer oaths, usually a notary public. The notary public then attests with his own signature that the affidavit was "Sworn to before me this date" and is followed by the notary's stamp and number (see, Siegel, NY Prac § 205 [3d ed]).