New York State Court of Claims

New York State Court of Claims

BROWN v. THE STATE OF NEW YORK, #2006-009-073, Claim No. 111202, Motion No. M-72149


Synopsis


Claimant’s motion seeking permission to reargue was denied.

Case Information

UID:
2006-009-073
Claimant(s):
FRED BROWN
Claimant short name:
BROWN
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
111202
Motion number(s):
M-72149
Cross-motion number(s):

Judge:
NICHOLAS V. MIDEY JR.
Claimant’s attorney:
FRED BROWN, Pro Se
Defendant’s attorney:
HON. ELIOT SPITZER
Attorney General
BY: Thomas M. Trace,
Senior AttorneyOf Counsel.
Third-party defendant’s attorney:

Signature date:
December 18, 2006
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant has brought this motion seeking permission to reargue a prior determination of this Court pursuant to CPLR Rule 2221(d)(2).

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


Copies of certified mail receipt documents (various dates) submitted by claimant 3


Affirmation in Opposition, with Exhibit 4

In a prior Decision and Order[1], this Court dismissed the claim based upon its determination that claimant had failed to serve both his notice of intention to file a claim and his claim upon the Attorney General in accordance with the requirements of Court of Claims Act § 11(a). In reaching its decision, the Court relied upon documentary evidence submitted by the defendant which established, to the satisfaction of the Court, that claimant had served both his notice of intention and his claim by regular, first class mail, and not by certified mail, return receipt requested, as required by § 11(a). The Court notes that claimant did not respond in any manner to that motion.

In this application, claimant now seeks to reargue the prior Decision and Order of this Court, contending that the Attorney General was properly served by certified mail, return receipt requested. In support of his application, claimant has submitted copies of documents pertaining to various certified mailings upon the Attorney General, and he contends that one of these mailings, identified as certified mail article number 7004-0750-0004-0248-4449[2] represents service of either his notice of intention or claim upon the Attorney General.[3]

In his supporting affidavit, claimant further contends that this certified mailing establishes service upon the Attorney General on November 4, 2005. The Court has reviewed these submissions, and contrary to claimant’s assertions, the certified mail receipt referred to by claimant is clearly stamped with a date of receipt of October 29, 2004, rather than November 4, 2005.

The actual date of service, October 29, 2004, predates his claim (which is dated July 14, 2005), as well as the allegations which form the basis of the claim herein. Therefore, although clamant did serve certain documents upon the Attorney General on October 29, 2004, as evidenced by his certified mail receipt, such mailing could not possibly have contained any documents (either a notice of intention or a claim) pertaining to this claim.[4]

Accordingly, the Court finds that claimant has not presented any evidence whatsoever to even remotely suggest that this Court’s prior Decision and Order in dismissing his claim for improper service was incorrect. This Court remains satisfied that neither claimant’s notice of intention to file a claim or claim was properly served, and therefore stands by its prior determination set forth in the Decision and Order to Motion No. M-71078, in which this claim was dismissed for improper service.

Accordingly, it is

ORDERED, that Motion No. M-72149 is hereby DENIED.


December 18, 2006
Syracuse, New York

HON. NICHOLAS V. MIDEY JR.
Judge of the Court of Claims



[1]. See Decision and Order to Motion No. M-71078.
[2]. In his supporting affidavit, claimant incorrectly identified this number as #7004-0750-0004-0246-4449.
[3]. In his affidavit, claimant never indicated whether this particular mailing contained his notice of intention to file a claim or his claim, and the copy of the receipt submitted to the Court contains no such identifying information.
[4]. The Court has also examined the other copies of certified mail receipts submitted by claimant, and finds none that are sufficiently close in time to the relevant dates of this claim, and therefore finds that they bear no relevance whatsoever to the instant motion.