New York State Court of Claims

New York State Court of Claims

DAVIS v. THE STATE OF NEW YORK, #2005-030-020, Claim No. 106166


Synopsis



Case Information

UID:
2005-030-020
Claimant(s):
TIQUAN DAVIS
Claimant short name:
DAVIS
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
106166
Motion number(s):

Cross-motion number(s):

Judge:
THOMAS H. SCUCCIMARRA
Claimant's attorney:
TIQUAN DAVIS, 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:
July 27, 2005
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Tiquan Davis, the Claimant herein, alleges in Claim number 106166 that Defendant's agents negligently provided him with the wrong medication while he was incarcerated at Green Haven Correctional Facility (hereafter Green Haven), causing him injury. Trial of the matter was scheduled to go forward on February 25, 2005.

As an initial matter, Defendant moved to dismiss the Claim, arguing that the Court lacked jurisdiction because Claimant had failed to serve the Claim upon the Office of the Attorney General either personally or by certified mail, return receipt requested as required, and in conformance with a prior Decision and Order granting him late claim relief, and directing service of the Claim within sixty days (60) of the filing of the Decision. [See Davis v State of New York, Claim no. None, Motion No. M-64181 (Waldon, J., filed April 12, 2002)].

The Assistant Attorney General produced an Affidavit from 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 neither a Notice of Intention or Claim was ever received by the Attorney General's Office. [Defendant's Exhibit A]. The only documents received were a copy of a letter from the Chief Clerk's Office dated June 18, 2002 directed to Claimant indicating that a claim had been filed with the Court, and an Order reducing the filing fee. [id.]. No Answer by the Attorney General was served or filed.

Claimant produced a return receipt showing receipt by the Attorney General's Office of something on September 22, 2001, and asserted that he wrote to the Chief Clerk of the Court of Claims, asking whether he needed to serve the Attorney General with "another claim"[1] after Judge Waldon's Decision granting him permission to serve and file a late claim. He claimed he had a response from the Chief Clerk telling him he did not need to serve the Attorney General again. Apparently, an identical claim had either been served upon the Attorney General in September 2001, when Claimant brought his motion for late claim relief, or was part of the motion for late claim relief. When asked to produce copies of this correspondence, however, he could not, nor did the Court find copies of this correspondence in the Clerk's file.

Because of the possible confusion, and without indicating whether such correspondence would have a legal consequence given the strict requirements of the Court of Claims Act, the Court reserved decision on the Defendant's motion, and Claimant was given an opportunity to provide the Court with copies of the letters mentioned within two (2) weeks of the trial date or by March 11, 2005.

The Court received a letter from Mr. Davis on March 10, 2005 indicating that he was unable to obtain a copy of the correspondence he discussed.

As of today's date, the Court has not received copies of the correspondence or proof of proper service of the Claim in any event. The Court has also reviewed the correspondence contained in the Clerk's file and finds that there are no letters such as those described by Claimant.

The filing and service requirements contained in §§10 and 11 of the Court of Claims Act are jurisdictional in nature and must be strictly construed. Finnerty v New YorkState Thruway Auth., 75 NY2d 721, 722-723 (1989). Service upon the Attorney General by ordinary mail is insufficient to acquire jurisdiction over the State, as is mail service by any means other than certified mail, return receipt requested, 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). Additionally, the Claimant has the burden of establishing proper service. Boudreau v Ivanov, 154 AD2d 638, 639 (2d Dept 1989). Regulations require that proof of service be filed with the Chief Clerk within ten (10) days of service on the Defendant. 22 NYCRR § 206.5(a).

As noted, 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, M-62308, 62310, CM-62324 (September 20, 2000; Corbett, Jr., J.). The State has raised the jurisdictional issue in a timely motion as required.

Accordingly, 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), and, therefore, this Court does not have jurisdiction.

Claim Number 106166 is hereby dismissed in its entirety.


July 27, 2005
White Plains, New York

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




[1] All quotations are to trial notes or audiotapes unless otherwise indicated.