New York State Court of Claims

New York State Court of Claims

OGLESBY v. THE STATE OF NEW YORK, #2006-030-008, Claim No. 107782


Synopsis



Case Information

UID:
2006-030-008
Claimant(s):
FRANK OGLESBY
Claimant short name:
OGLESBY
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
107782
Motion number(s):

Cross-motion number(s):

Judge:
THOMAS H. SCUCCIMARRA
Claimant’s attorney:
FRANK OGLESBY, PRO SE
Defendant’s attorney:
HON. ELIOT SPITZER, NEW YORK STATE ATTORNEY GENERAL
BY: MARY B. KAVANEY, ASSISTANT ATTORNEY GENERAL
Third-party defendant’s attorney:

Signature date:
June 13, 2006
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Frank Oglesby alleges in Claim Number 107782 that Defendant’s agents negligently allowed a faulty plumbing condition to exist in his cell at Green Haven Correctional Facility on or about September 12, 2002, resulting in water damage to his personal property, specifically legal transcripts and medical records. Trial of the matter was held at Sing Sing Correctional Facility on March 3, 2006.


As an initial matter, the Defendant moved to dismiss the claim based upon its second defense, a lack of jurisdiction based upon Claimant’s failure to serve the claim upon the Attorney General’s Office by certified mail, return receipt requested. In support of this argument, Defendant provided the manila envelope in which the Claim had been transmitted to the Attorney General’s Office, containing an indication that it was “Legal Mail”, and showing postage paid in the amount of $1.75. [Exhibit A].

The Affidavit of Service filed with the Claim indicates that the Claim was served upon the Attorney General by regular mail. [See Exhibit A]. The Assistant Attorney General acknowledged that the Claim was received by regular mail on May 29, 2003, and the Claim is file-stamped to that effect. [id.]. An additional affidavit of service appended to the filed Claim concerning the service of a Notice of Intention to file a Claim upon the Attorney General by certified mail, return receipt requested on November 29, 2002, would appear to correspond with the photocopies of a facility disbursement request form dated December 6, 2002, and certified mail receipts pointed out by Claimant, reflecting delivery of a document to the Attorney General’s Office on December 12, 2002. [id.]. Additionally, the Claim itself is sworn to on April 28, 2003: well after the dates indicated on the proofs of service offered herein. [id.]. Finally, Mr. Oglesby had to concede when he examined his papers that the only document he sent out on December 10, 2002 was the Notice of Intention to file a Claim, not the Claim itself, and that he did not serve the Claim by certified mail, return receipt requested.

Claimant argued that his service of the Notice of Intention within ninety (90) days of accrual of the claim, by certified mail, return receipt requested, was enough to give this Court jurisdiction over the Claim, despite his failure to serve the Claim either personally, or by certified mail, return receipt requested. This is incorrect.

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)(i) 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. 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).

Here, the Claimant has not established that he served the Claim upon the Attorney General as required, and the Defendant has properly raised the jurisdictional issue in its Verified Answer. Timely and proper service[1] of a Notice of Intention upon the Attorney General would arguably toll the limitations period to allow for service of the underlying claim within two years of its accrual. See Court of Claims Act §10(3)[2]. It does not remove, however, the additional statutory requirement that the claim be served either personally, or by certified mail, return receipt requested.

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), thus this Court does not have jurisdiction to hear the Claim. Defendant’s motion to dismiss, upon which decision was reserved at the time of trial, is hereby granted in its entirety, and Claim Number 107782 is in all respects dismissed.

Let judgment be entered accordingly.


June 13, 2006
White Plains, New York

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




[1]. There has been no requirement that the Notice of Intention be filed with the Clerk of the Court of Claims since 1995.
[2]. Unless this claim is treated as a claim requiring exhaustion of the personal property claims administrative remedy, in which case serving a Notice of Intention to file a Claim would not toll the one-hundred twenty (120) day period within which a claim must be filed after exhaustion of the administrative remedy. See Verdel v State of New York, UID #2006-028-504, Claim No. None, Motion No. M-70055 (Sise, P.J., January 10, 2006).