New York State Court of Claims

New York State Court of Claims

ALLEN v. THE STATE OF NEW YORK, #2003-031-041, Claim No. 100438, Motion No. M-66484


Synopsis


Defendant failed to demonstrate either improper or untimely service of claim. Motion to dismiss denied.

Case Information

UID:
2003-031-041
Claimant(s):
ORLANDO ALLEN
Claimant short name:
ALLEN
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
100438
Motion number(s):
M-66484
Cross-motion number(s):

Judge:
RENÉE FORGENSI MINARIK
Claimant's attorney:
ORLANDO ALLEN, PRO SE
Defendant's attorney:
HON. ELIOT SPITZER
New York State Attorney General
BY: GREGORY P. MILLER, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
July 28, 2003
City:
Rochester
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers, numbered 1 to 3, were read on motion by Defendant to dismiss the claim for improper and untimely service:
1) Notice of Motion, filed March 5, 2003;
2) Affidavit of Gregory P. Miller, Esq., sworn to March 4, 2003, with attached exhibits;
3) Defendant's Memorandum of Law, dated February 28, 2003. Claimant commenced this action for loss or destruction of personal property by filing a claim on May 25, 1999. The cause of action allegedly accrued on February 17, 1999. Claimant served Defendant with a notice of intention to file a claim on April 29, 1999. Claimant served Defendant with the claim on May 27, 1999. Defendant asserts in its supporting papers, that both the notice of intention to file a claim and the claim were served upon the Attorney General's Office by regular mail. Defendant, therefore, brings this motion seeking dismissal of the claim, based upon Claimant's failure to timely and properly serve the claim by certified mail, return receipt requested as required by Court of Claims Act § 11(a). Claimant has not responded to Defendant's motion.

Defendant has adequately demonstrated with Exhibit D, a copy of the envelope in which the notice of intention to file a claim was served, that this document was sent to Defendant by first class mail and not by certified mail, return receipt requested.

However, Defendant's position regarding service of the claim is unsupported and, in fact, directly contradicted by its own Exhibit B. This Exhibit, the envelope in which the claim was served, clearly indicates that the claim was served upon the Attorney General on May 27, 1999 by certified mail, return receipt requested. For this reason, it appears that the claim was properly served.

It does appear, at first blush, that the claim was, nonetheless, untimely. The claim initially asserts that the incident underlying the claim occurred on February 17, 1999. The claim was served upon the Attorney General 99 days later, on May 27, 1999. However, though the claim may have been inartfully drafted, a careful reading demonstrates that the Claimant's property, a television set, was not confiscated until February 28, 1999, and Claimant was not informed that it had been lost by Defendant until March 7, 1999. For this reason, I find that the claim accrued on March 7, 1999. Therefore, I find that the claim was neither untimely nor improperly filed.

Based upon the foregoing it is:

ORDERED, that Defendant's motion for dismissal of the claim is denied.

July 28, 2003
Rochester, New York

HON. RENÉE FORGENSI MINARIK
Judge of the Court of Claims