New York State Court of Claims

New York State Court of Claims

JENKINS v. THE STATE 0F NEW YORK, #2004-030-043, Claim No. 106574


Synopsis



Case Information

UID:
2004-030-043
Claimant(s):
WILLIE JENKINS The caption has been amended to reflect the only proper defendant.
Claimant short name:
JENKINS
Footnote (claimant name) :

Defendant(s):
THE STATE 0F 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):
106574
Motion number(s):

Cross-motion number(s):

Judge:
THOMAS H. SCUCCIMARRA
Claimant's attorney:
WILLIE JENKINS, PRO SE
Defendant's attorney:
HON. ELIOT SPITZER, NEW YORK STATE ATTORNEY GENERALBY: J. GARDNER RYAN, ASSISTANT ATTORNEY GENERAL
Third-party defendant's attorney:

Signature date:
November 19, 2004
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision
Willie Jenkins, the Claimant herein, alleges in Claim Number 106574 that Defendant's agents negligently or intentionally lost his property while he was an inmate at Green Haven Correctional Facility (hereafter Green Haven). Trial of the matter was held on October 22, 2004.

As an initial matter, Defendant made application to dismiss the Claim based upon Claimant's alleged failure to timely serve the Claim upon the Attorney General by certified mail, return receipt requested. In support of this contention, Defendant provided an Affidavit from a Catherine Naveed, a clerk in the Claims Bureau of the New York City Office of the Attorney General of the State of New York, dated October 15, 2004 in which it is indicated that although 2 documents entitled Notice of Intention were received on, respectively, September 18, 2002 and October 7, 2002, no Claim was ever received by the Attorney General's Office. [Exhibit "A"]. The only other document received was a copy of a letter from the Chief Clerk's Office dated September 13, 2002 directed to Claimant indicating that a claim had been filed with the Court.
[Id].
The Assistant Attorney General also submitted a copy of a Notice of Intention stamped as received by the Attorney General's Office on October 7, 2002.[1]
[Exhibit B]. It is noted that the document entitled Claim that was filed with the Chief Clerk of the Court of Claims was filed on September 3, 2002. No affidavit of service accompanies the Claim.
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,CM-62324 (September 20, 2000, Corbett, Jr., J.).
Claimant was not able to produce receipts showing that either the Notice of Intention or the Claim was served by certified mail, return receipt requested. He stated that he had served the Claim but could not produce proof because he did not have his paperwork with him, having left Southport Correctional Facility without his paperwork. In consideration of his assertion, the Court granted Claimant an additional two weeks from the trial date - or until November 5, 2004 - to forward proof of service to the Court. As of November 19, 2004 no such proof has been received.

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); 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 upon the attorney general
. . . either personally or by certified mail, return receipt requested . . . " 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(c). 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).
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 timely served with a copy of the claim as required by Court of Claims Act §11(a). Accordingly, Claim Number 106574 is hereby dismissed for a lack of jurisdiction.

Let judgment be entered accordingly.


November 19, 2004
White Plains, New York

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




[1] Presumably, this is the Notice of Intention Ms. Naveed indicates was received October 7, 2002, unless it is yet another Notice of Intention.