New York State Court of Claims

New York State Court of Claims

RUSCH v. THE STATE OF NEW YORK, #2002-030-067, Claim No. 103297, Motion No. M-65635


Synopsis


Claim alleging failure to provide adequate medical care at Green Haven Correctional Facility dismissed. Defendant raised defense in its Answer. Claimant failed to establish that claim was served upon Attorney General's office by certified mail, return receipt requested

Case Information

UID:
2002-030-067
Claimant(s):
MARK RUSCH Caption has been amended to reflect the only proper defendant.
Claimant short name:
RUSCH
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :
Caption has been amended to reflect the only proper defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
103297
Motion number(s):
M-65635
Cross-motion number(s):

Judge:
THOMAS H. SCUCCIMARRA
Claimant's attorney:
MARK RUSCH, PRO SE
Defendant's attorney:
HON. ELIOT SPITZER, NEW YORK STATE ATTORNEY GENERALBY: DEWEY LEE, ASSISTANT ATTORNEY GENERAL
Third-party defendant's attorney:

Signature date:
September 3, 2002
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)

.
Decision

Mark Rusch, the Claimant herein, alleges in Claim Number 103297 that Defendant's agents failed to give him adequate medical care while he was incarcerated at Green Haven Correctional Facility (hereafter Green Haven). Trial of the matter was scheduled to go forward on August 23, 2002.

Prior to that date, however, Defendant had made a written motion to dismiss the claim based upon this Court's lack of jurisdiction over the claim as well as its failure to state a cause of action. That motion was renewed orally, and Defendant also sought dismissal on the additional ground that claimant has another claim pending concerning the same matter. Although it is somewhat difficult to read, the present claim asserts that on or about March 10, 1999 Claimant returned from St. Agnes Hospital and did not receive proper care for a swelling in his right arm, and suffered some additional physical harm as a result.

With respect to the jurisdictional ground for dismissal, Counsel for Defendant asserted that the Claim had been served upon the Office of the Attorney General by regular mail, rather than by certified mail, return receipt requested. This defense was raised in Defendant's Answer. In support of this contention, Defendant furnished a copy of the envelope in which the claim was sent, indicating only postage in the amount of only $.77 had been paid: far less than the fee required for certified mail. Additionally, after some confusion, Claimant was unable to show that this Claim was served certified mail, return receipt requested.[1] There is no affidavit of service in the file indicating how and when the claim was served.

The filing and service requirements contained in §§10 and 11 Court of Claims Act are jurisdictional in nature and must be strictly construed. Finnerty v New York State Thruway Auth., 75 NY2d 721, 722-723 (1989); See, also, Welch v State of New York, 286 AD2d 496, 729 NYS2d 527, 529 (2d Dept 2001); Conner v State of New York, 268 AD2d 706, 707 (3d Dept 2000). Indeed, the statute provides in pertinent part "...[n]o judgment shall be granted in favor of any claimant unless such claimant shall have complied with the provisions of this section applicable to his claim...." Court of Claims Act §10.

Court of Claims Act §11(a) provides that "...a copy [of the claim] shall be served personally or by certified mail, return receipt requested, upon the attorney general..." within the time prescribed in Court of Claims Act §10; and service is complete when it is received in the Attorney General's office. Court of Claims Act §11(a)(ii). Service upon the Attorney General by ordinary mail is generally insufficient to acquire jurisdiction over the State, unless the State has failed to properly plead jurisdictional defenses or raise them by motion. §11(c) Court of Claims Act; Edens v State of New York, 259 AD2d 729 (2d Dept 1999); Philippe v State of New York, 248 AD2d 827 (3d Dept 1998).

The Claimant has the burden of establishing proper service [Boudreau v Ivanov, 154 AD2d 638, 639 (2d Dept 1989)] by a preponderance of the evidence. See, Maldonado v County of Suffolk, 229 AD2d 376 (2d Dept 1996). Regulations require that proof of service be filed with the Chief Clerk within ten (10) days of service on the defendant. 22 NYCRR § 206.5(a). Even if an affidavit of service has not been filed with the Chief Clerk's office, some form of proof of service would be necessary in order to make application for a default judgment [§ 3215(f) Civil Practice Law and Rules] for example; or to oppose a party's motion to dismiss based upon lack of service. §3211(e) Civil Practice Law and Rules. Indeed, in the standard civil case, where independent process servers attest to the facts of service, an affidavit of service constitutes prima facie evidence of proper service in the absence of a sworn denial that the party to be served was not served. Maldonado v County of Suffolk, supra, at 377; C.f., Persaud v Teaneck Nursing Center, Inc., 290 AD2d 350 (1st Dept 2002).

Here, the Claimant has not been able to establish that he served the Claim upon the Attorney General as required, and the Defendant has raised the jurisdictional issue in its Answer and in a timely motion. Thus Claimant has failed to establish, by a fair preponderance of the credible evidence, that the Attorney General was served with a copy of the claim as required by Court of Claims Act §11(a), therefore this Court has no jurisdiction over the claim. The Court does not consider the other aspects of Defendant's motion since it has determined the motion on this jurisdictional ground. Accordingly, Claim Number 103297 is hereby dismissed in its entirety.

Let judgment be entered accordingly.

September 3, 2002
White Plains, New York

HON. THOMAS H. SCUCCIMARRA
Judge of the Court of Claims




[1] It appears that Claimant has prepared an additional claim assigned Claim Number 104818, that he may have served properly. The receipts he handed up to the Court, and which were handed back to Claimant in order that he be able to produce them if required at some future court appearance in connection with that claim, refer only to Claim Number 104818, not the present claim.