Rodney Vans, the Claimant herein, alleges in Claim Number 106366 that
Defendant's agents failed to protect him from an assault by fellow inmates while
he was incarcerated at Green Haven Correctional Facility (hereafter Green
Haven). Trial of the matter was to go forward at Green Haven on November 21,
On that date, an Order to Show Cause issued by the Court was also returnable.
The Order to Show Cause directed Claimant to show cause why his claim should not
be dismissed for a lack of jurisdiction, it appearing that Claimant had failed
to comply with the service requirements of Court of Claims Act
Permission to serve and file the present claim had been granted by an earlier
Decision and Order, directing that the new claim be served and filed within
sixty (60) days of the filing date of the Order pursuant to the relevant
provisions of the Court of Claims Act and Rules. [See, Vans v State of
New York, Claim No. 104565, Motion No. M-64572 (Waldon, J., June 17, 2002)].
Although Claimant did file a copy of the Claim with the Chief Clerk of the Court
of Claims, it does not appear that he served the Attorney General's Office as
The copy of the claim filed with the Chief Clerk - verified on July 11, 2002 -
does not contain an affidavit of service and, although photocopies of return
receipt cards were apparently forwarded to the Clerk's Office in February, 2003,
there is no way of ascertaining to what these receipts refer absent more
consistent testimony from Claimant. There is no year indicated on the photocopy
of the return receipt, and an earlier claim pertaining to the same underlying
fact that had been dismissed was served in the same month that this claim is
alleged to have been served. Claimant testified he forwarded the original
return receipts to the Clerk's Office, and no longer has them, yet the file
contains only the photocopies referred to.
Other photocopies include a disbursement request form that appears to have been
returned to Claimant for insufficient funds, dated July 11, 2002, or, perhaps,
an advancement was authorized: without testimony explaining the discrepancies
the Court cannot know.
No Answer has been served or filed by Defendant. In an Affidavit by Catherine
Naveed, a clerk in the Claims Bureau of the New York City Office of the Attorney
General responsible for recording receipt of correspondence and pleadings by the
Attorney General's Office, she indicates that although a Notice of Intention
was served upon the agency on June 23, 2000, and various correspondence from
Claimant and the Court has been received in the interim, no claim was ever
served. Indeed, a demand for a bill of particulars as to Defendant's
Affirmative Defenses was received on August 16, 2002 by certified mail, return
receipt requested, as evidenced by a copy handed up by the Assistant Attorney
General with an appended envelope containing the remaining parts of the receipt.
[See Trial Exhibit B].
The filing and service requirements contained in Court of Claims Act
§§10 and 11are 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)(i). 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. Court of Claims Act §11(c); 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 §
The time lag between the alleged service and the filing of the proof of
service, the absence of a contemporaneous, verified affidavit of service, and
the sworn affidavit from the records clerk from the Attorney General's Office
militate against crediting the Claimant's self-serving oral assertion before
this Court that the service was proper. There is simply an internal
inconsistency to the Claimant's assertions, which makes them incredible. See
e.g. Davis v State of New York, Claim No 103010; Motion No. M-62474
(unreported decision signed January 3, 2001; Collins, J.). As noted, no Answer
by the Attorney General was served or filed. This has also been found to be
"reflective of the failure to have served the claim." See Dunn v State
of New York, Claim No. 98551, Motion Nos. M-62308, M-62310, CM-62324
(unreported decision signed September 20, 2000; Corbett, J.).
Here, the Claimant has not been able to establish that he served the Claim upon
the Attorney General as required, and the jurisdictional issue has been timely
raised. 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) . Accordingly, Claim Number
106366 is hereby dismissed for a lack of jurisdiction.
Claimant's motion Number M-67510 to strike the Defendant's Answer as a penalty
for failure to disclose is denied both as unavailable, given the fact that no
Answer was ever served, and as moot given the dismissal of the within Claim.