New York State Court of Claims

New York State Court of Claims

RIOS v. THE STATE OF NEW YORK , #2004-030-017, Claim No. 107047


Synopsis



Case Information

UID:
2004-030-017
Claimant(s):
ENIEZER RIOS The caption has been amended to reflect the only proper defendant.
Claimant short name:
RIOS
Footnote (claimant name) :

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

Third-party defendant(s):

Claim number(s):
107047
Motion number(s):

Cross-motion number(s):

Judge:
THOMAS H. SCUCCIMARRA
Claimant's attorney:
ENIEZER RIOS, PRO SE
Defendant's attorney:
HON. ELIOT SPITZER, NEW YORK STATE ATTORNEY GENERALBY: MARY B. KAVANEY, ASSISTANT ATTORNEY GENERAL
Third-party defendant's attorney:

Signature date:
June 28, 2004
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision
Eniezer Rios, the Claimant herein, alleges in Claim Number 107047 that Defendant's agents assaulted him while he was incarcerated at Downstate Correctional Facility in the custody of the New York State Department of Correctional Services. Trial of the matter was scheduled to proceed on April 23, 2004.

As an initial matter, Defendant made a motion to dismiss the claim based upon a failure to properly serve the claim pursuant to Court of Claims Act §11. In support of this contention, the Attorney General submitted an affidavit from the records clerk at the Office of the Attorney General indicating that there was no record of the Attorney General's Office having received any documents connected with this Claim except for a copy of a letter from the Court of Claims directed to Claimant acknowledging receipt of the Claim by the Court. [State's Exhibit "A"].
The copy of the Claim contained in the Court's file includes an affidavit of service indicating that Claimant had served the Claim upon the Attorney General by regular mail. Claimant did not have proof of service in the form of receipts for certified mail. The Court notes that no Answer by the Attorney General was served or filed. This has 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, Cross-Motion No. CM-62324 (September 20, 2000, Corbett, J.)
The filing and service requirements contained in Court of Claims Act §§10 and 11 are jurisdictional in nature and must be strictly construed.
Finnerty v New York State Thruway Auth., 75 NY2d 721, 722-723 (1989). 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.
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). 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). Additionally, the Claimant has the burden of establishing proper service by a preponderance of the evidence. Boudreau v Ivanov, 154 AD2d 638, 639 (2d Dept 1989).
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 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). Accordingly, Claim Number 107047 is hereby dismissed for lack of jurisdiction. Let judgment be entered accordingly.

June 28, 2004
White Plains, New York

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