New York State Court of Claims

New York State Court of Claims

JONES v. STATE OF NEW YORK, #2003-018-216, Claim No. 105792, Motion Nos. M-65003, CM-65106


Synopsis


After a hearing, the Court finds that the claimant served a verified notice of intention upon the Attorney General's office. Pursuant to the interim Decision and Order of this Court filed December 13, 2002, the defendant's motion is DENIED as it relates to incidents occurring on April 16, 2000 and June 17, 2000. Defendant's motion is granted as to the portion of the claim relating to incidents occurring on January 25, 2000 and January 31, 2000. Claimant's cross- motion, in accordance with the December 13, 2002 interim Decision and Order of this Court, is granted to the extent of treating the notice of intention dated February 3, 2000 and verified February 4, 2000 as the claim.

Case Information

UID:
2003-018-216
Claimant(s):
CHARLES JONES
Claimant short name:
JONES
Footnote (claimant name) :

Defendant(s):
STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
105792
Motion number(s):
M-65003
Cross-motion number(s):
CM-65106
Judge:
DIANE L. FITZPATRICK
Claimant's attorney:
CHARLES JONESPRO SE
Defendant's attorney:
ELIOT SPITZER
Attorney General of the State of New York
By: JOEL L. MARMELSTEIN, ESQUIREAssistant Attorney General
Third-party defendant's attorney:

Signature date:
May 8, 2003
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision
A hearing was held pursuant to an interim decision and order[1]
to determine the factual issue of whether or not the notice of intention to file a claim dated February 3, 2000 was verified, which was appropriately served on defendant on February 7, 2000. If the Court finds that it was verified, then it must also decide whether to grant claimant relief under Court of Claims Act § 10(8).
Mr. Jones testified that he prepared the notice of intention himself on February 3, 2000, in the Ogdensburg Correctional Facility Law Library but did not have a verification form. He made an appointment with Susan McLear, the facility notary public, to notarize his signature after he obtained the appropriate form. That occurred on February 4, 2000, and on the same day, claimant put the notice of intention and verification into an envelope at the facility and had it sent to the attorney general's office, certified mail, return receipt requested. Claimant produced a copy of the verification[2]
which refers to a "Notice of Intention to File a Claim" and handwritten above that is "DATED 2-3-2000." He also submitted the notice of intention.[3] On the bottom of that document, claimant wrote "That Charles Jones declares the forgoing [sic] to be true under penalty of perjury."
On cross-examination, claimant testified that he knew that a notice of intention and a claim required verification when he prepared his notice of intention. Defendant took issue with claimant's credibility on this issue because the Court previously dismissed a claim claimant filed in May 2000 for lack of verification.[4]

The State called Laura Sandwick, a secretary in the Utica office of the Attorney General, who testified that she searched claimant's file and found no verification form. She also identified the notice of intention and envelope[5]
which the Poughkeepsie Attorney General's office originally received and which was then sent to Utica. Ms. Sandwick did not speak with anyone in the Poughkeepsie office to determine whether or not they had inadvertently kept the verification form, nor did she explain the procedure for the transfer of documents from one office to another or who stapled the envelope to the notice of intention. The two pages of the notice of intention were stapled and unstapled more than once, and the envelope also has another set of staple holes.
It is claimant's burden to prove that the notice of intention was verified. Claimant testified that he enclosed the verification in the envelope with the notice of intention, and he arranged for it to be sent by certified mail, return receipt requested.

Claimant has established through the documentation that on February 4, 2000, he signed a verification referencing a notice of intention to file claim dated February 3, 2000, the same date claimant prepared the notice of intention. The verification is notarized on February 4, 2000 the same date the notice of intention was mailed from Ogdensburg Correctional Facility. The envelope postmark confirms a mailing date of February 4, 2000. Claimant testified that he believes the original verification form was served with the notice of intention. This is sufficient evidence to require the defendant to refute the prima facia showing of verification.

The defendant proved that the Utica office of the Attorney General did not receive a verified notice of intention; however, there was no evidence that the verification was not received at the original place of reception, the Poughkeepsie office. The numerous staple holes in the notice of intention indicate that the document had been separated on more than one occasion and no explanation was given.

Therefore, the Court finds that the claimant served a verified notice of intention upon the Poughkeepsie Attorney General's office. Pursuant to the interim Decision and Order of this Court filed December 13, 2002, the defendant's motion is DENIED as it relates to incidents occurring on April 16, 2000 and June 17, 2000. Defendant's motion is granted as to the portion of the claim relating to incidents occurring on January 25, 2000 and January 31, 2000. Claimant's cross motion, in accordance with the December 13, 2002 interim Decision and Order of this Court, is granted to the extent of treating the notice of intention dated February 3, 2000 and verified February 4, 2000 as the claim. The Clerk of the Court is directed to make a copy of the verified notice of intention attached to claimant's cross motion No. CM-65106 and designate it as a claim. The claim shall be assigned an appropriate claim number as if it had been filed on February 7, 2000. Within 30 days from the date this Decision and Order is filed with the Clerk of the Court, claimant should amend the claim to set forth a demand for relief and file and serve the amended claim. Defendant, in accordance with the Uniform Rules for the Court of Claims [22 NYCRR] § 206.7(b) shall have 40 days from the date claimant serves the amended claim to serve an answer to the amended claim.


May 8, 2003
Syracuse, New York

HON. DIANE L. FITZPATRICK
Judge of the Court of Claims


The Court considered the following in deciding this motion:

Notice of Motion...................................................................................................1

Affirmation of Joel L. Marmelstein, Esquire, Assistant Attorney General

in support, together with exhibits attached thereto....................................2


Notice of Cross-Motion.........................................................................................3


Affidavit of Charles Jones, in support with exhibits attached thereto...................4


Affirmation of Joel L. Marmelstein, Esquire, Assistant Attorney General

in opposition...............................................................................................5


Exhibits received at hearing


Claimant's exhibits 1 and 2........................................................................6


Defendant's exhibits C, D, and E...............................................................7


Filed Documents:


Claim No. 105792.......................................................................................8


[1]See, Jones v State of New York, Ct Cl unpublished decision and order of J. Fitzpatrick, filed December 13, 2002, Claim No. 105792, Motion Nos. M-65003, CM-65106, UID No. 2002-018-172. (Note, most unpublished decisions of the Court of Claims are available on www.nyscourtofclaims.state.ny.us/decisions).
[2]Exhibit 1
[3]Exhibit 2
[4]Jones v State of New York, Ct Cl, unpublished decision and order of J. Fitzpatrick, filed February 28, 2002, Claim No. 102461, Motion Nos. M-63420, M-64075, Cross-Motion Nos. CM-63515, CM-64103, UID No. 2002-018-121.
[5]Exhibit E