New York State Court of Claims

New York State Court of Claims

JORDAN v. THE STATE OF NEW YORK , #2005-030-037, Claim No. 107194


Synopsis



Case Information

UID:
2005-030-037
Claimant(s):
WALTER JORDAN The caption has been amended to reflect the only proper defendant.
Claimant short name:
JORDAN
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):
107194
Motion number(s):

Cross-motion number(s):

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

Signature date:
November 4, 2005
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Walter Jordan alleges in Claim Number 107194 that Defendant's agents at Green Haven Correctional Facility negligently allowed a dangerous condition to exist in the shower area causing Claimant to slip, fall and suffer injury. Trial of the matter was scheduled to go forward on October 17, 2005.

On that date, Defendant moved to dismiss the claim on the basis of a lack of jurisdiction, in that the Attorney General's Office was never served with the claim. 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, whose duties include familiarity and access to the record keeping system of the Claims Bureau. [Defendant's Exhibit "A"]. She indicates in her Affidavit that a letter from the Office of the Chief Clerk of the Court of Claims was received by the Attorney General's Office on February 3, 2003, but no Notice of Intention to file a Claim and no Claim was ever received [id.]. Additionally, she made inquiries of the local offices of the Attorney General and received no response [id.].

According to the file maintained by the Chief Clerk for the Court of Claims, there is no Affidavit of Service from the Claimant reflecting service of the Claim, and no Answer by the Attorney General was served or filed.

Claimant was not able to produce receipts showing that the Claim was served upon the Attorney General by certified mail, return receipt requested. He stated that he had served the claim properly but could not produce proof because he did not have his paperwork with him, but could obtain it. In consideration of his assertion, the Court granted Claimant an additional ten (10) days from the trial date - or October 27, 2005 - to forward proof of service to the Court.

Although Claimant forwarded two letters to the Court since the day of trial, received on October 20, 2005 and October 31, 2005, respectively, the correspondence merely repeats the assertions in his Claim, and does not contain any proof of service.

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 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). 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. 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).

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). 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 above, 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, M-62310, CM-62324 (September 20, 2000, Corbett, Jr., J.).

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 107194 is hereby dismissed for a lack of jurisdiction.

November 4, 2005
White Plains, New York

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