New York State Court of Claims

New York State Court of Claims

FLEMMING v. THE STATE OF NEW YORK, #2005-009-041, Claim No. 110540, Motion No. M-70241


Claimant's motion to renew a previous motion by the defendant in which this Court dismissed the claim based upon improper service of the claim was denied.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant's attorney:
Defendant's attorney:
Attorney General
BY: Joel L. Marmelstein, Esq.,
Assistant Attorney GeneralOf Counsel.
Third-party defendant's attorney:

Signature date:
August 10, 2005

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant has brought this motion seeking to "vacate judgement" under CPLR § 5015, and to renew and reargue a previous motion pursuant to CPLR Rule 2221.

The following papers were considered by the Court in connection with this motion:
Notice of Motion, Affirmation in Support, with Attachments 1,2

Affirmation in Opposition, with Exhibits 3

Affidavit in Support (Reply), with Attachments 4 In a prior motion (Motion No. M-69951/Cross-Motion No. CM-69969)[1], this Court granted defendant's motion to dismiss the claim, due to a lack of personal jurisdiction based upon improper service of the claim on the Attorney General. Claimant has now brought this motion, seeking relief under CPLR § 5015, as well as permission to renew or reargue the motion under CPLR Rule 2221(d) and (e). Upon a review of the papers submitted herein, the Court finds that the proper avenue for the relief sought by claimant is a motion to renew pursuant to Rule 2221(e), and this application will be determined accordingly.

A motion to renew is based on new facts not offered on the prior motion that would change the prior determination; the motion "shall contain reasonable justification for the failure to present such facts on the prior motion" (CPLR Rule 2221[e][2]and [3]).

In its prior Decision and Order dismissing this claim, the Court accepted defendant's proof that claimant had served his claim upon the Attorney General by regular, first class mail, and not by certified mail, return receipt requested, as required by Court of Claims Act § 11(a). In his response in opposition to that motion, claimant had submitted evidence of two separate mailings by certified mail, return receipt requested, which he contended established proper service of his claim upon the Attorney General. The Court, in its Decision and Order, specifically rejected both of these attempts to establish proper service submitted by claimant. The Court found that one of the certified mailings was directed to the Court of Claims, and not to the Attorney General, and therefore on its face such evidence failed to establish proper service. The second certified mailing referred to by claimant, although addressed to the Attorney General, was not mailed until after the claim was actually received by the Attorney General, thereby negating that contention as well.

In the instant motion, claimant has now submitted evidence of a third certified mailing, dated February 17, 2005, and addressed to the Attorney General. Claimant contends that the claim was served on the Attorney General by this mailing, and further contends that such evidence constitutes new facts not considered by the Court in its prior decision, and finally that such mailing satisfied the jurisdictional requirements of Court of Claims Act § 11(a). Additionally, claimant also contends that he was unable to provide this evidence on the original motion, since State correction officials had denied him access to his legal documents, thereby providing reasonable justification for his failure to present these facts to the Court at the time the original motion was pending.

In response, defendant's attorney acknowledges that the Attorney General received a certified mailing from claimant corresponding to the certified mail receipt number and date referred to by claimant in the February 17, 2005 mailing. In its opposition to this motion, defendant has submitted a copy of the envelope used for this certified mailing, as well as a copy of the document which was included therein (see Exhibits  A and B to Item 3). The document submitted by the defendant (see Exhibit A) is a Notice of Intention to File a Claim dated February 17, 2005, the same date set forth on the disbursement request form for certified mail submitted by claimant. The Court has reviewed this Notice of Intention to File a Claim (referring to an incident with a correction officer which occurred on February 15, 2005) and finds that it pertains to an entirely different action, and bears no relationship whatsoever to Claim No. 110540 (a claim sounding in bailment which arose on July 2, 2004).

In short, based upon a review of the documentation submitted by the defendant in opposition to this motion, the Court finds that claimant has not submitted any new or credible evidence establishing proper service of this claim. Upon review of all documentation submitted by both claimant and defendant, the Court finds that claimant has failed to establish proper service of his claim upon the Attorney General, and that there is no basis whatsoever for this Court to reconsider its original decision dismissing the claim.

Based on the foregoing, therefore, it is

ORDERED, that Motion No. M-70241 is hereby DENIED.

August 10, 2005
Syracuse, New York

Judge of the Court of Claims

[1]Flemming v State of New York, Ct Cl, May 16, 2005, Midey, J., Claim No. 110540, Motion No. M-69951, Cross-Motion No. CM-69969, [UID #2005-009-030]) Unpublished decisions and selected orders of the Court of Claims are available via the Internet at