New York State Court of Claims

New York State Court of Claims

JENKINS v. THE STATE OF NEW YORK, #2006-030-031, Claim No. 108105


Synopsis


Pro se inmate’s claim dismissed lack of personal jurisdiction. Although Claimant established that he served a Notice of Intention to File a Claim upon the Attorney General by certified mail, return receipt requested, he did not establish that any Claim was served. No Answer was served and filed

Case Information

UID:
2006-030-031
Claimant(s):
MICHAEL JENKINS
1 1.The caption has been amended to reflect the only proper defendant.
Claimant short name:
JENKINS
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):
108105
Motion number(s):

Cross-motion number(s):

Judge:
THOMAS H. SCUCCIMARRA
Claimant’s attorney:
MICHAEL JENKINS, PRO SE
Defendant’s attorney:
HON. ELIOT SPITZER, NEW YORK STATE ATTORNEY GENERAL
BY: JEANE L. STRICKLAND SMITH, ASSISTANT ATTORNEY GENERAL
Third-party defendant’s attorney:

Signature date:
November 16, 2006
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)

.
Decision
Michael Jenkins alleges in his claim that Defendant’s agents at Green Haven Correctional Facility negligently allowed a dangerous wet-floor condition to exist in his housing unit without warning signs, causing Claimant to slip, fall and suffer injury on April 3, 2003. Trial of the matter was scheduled to go forward on September 29, 2006.
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 Valerie Clerk, 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 recordkeeping system of the Claims Bureau. [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 August 20, 2003, as well as letters from the Court dated August 3 and 16, 2006, but no other documents were ever received [id.]. Additionally, she made inquiries of the local offices of the Attorney General as to whether they had received any documents related to this claim and received no affirmative response [id.].
The claim that was filed in the Office of the Chief Clerk of the Court of Claims on August 5, 2003 contains an affidavit of service indicating that Mr. Jenkins served a Notice of Intention to File a Claim by certified mail on May 8, 2003, although the date for service appears to have been altered. The Notice of Intention has a photocopy of a green return receipt card attached to it reflecting receipt by the Attorney General’s Office on May 27, 2003 of some document bearing the United States Postal Service [USPS] article number 7002 0460 0001 9508 1391. [Exhibit 3]. A disbursement request form dated May 22, 2003, and containing the same USPS article number was also submitted [Exhibit 1], and an additional copy of the same or a similar affidavit of service dated May 7, 2003, also indicating that a Notice of Intention to File a Claim was served by certified mail on May 7, 2003 contains the same or similar notary public attestation as the one contained in a photocopy version of the affidavit of service filed with the claim. [Exhibit 2].
Finding the foregoing not conclusive as to the issue of whether the Claimant served the actual claim on the Attorney General as required, the Court reserved on Defendant’s motion to dismiss and directed the Claimant to furnish satisfactory proof of service of the claim. By letter dated September 29, 2006 Mr. Jenkins forwarded the portion of a certified mail receipt attesting to the sender’s payment of the proper postage and indicating the addressee. That portion of the certified mail receipt contains the same article number, stamped by the USPS at Stormville, New York, on May 22, 2003, as that on the photocopy of the return receipt postcard appended to the filed claim. As noted earlier, the Attorney General’s Office indicated that it had never received a copy of the claim.
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)(i). 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). In the standard civil case, where independent process servers attest to the facts of service, an affidavit of service constitutes prima facie evidence of proper service in the absence of a sworn denial that the party to be served was not served. Maldonado v County of Suffolk, supra at 377; cf. Persaud v Teaneck Nursing Ctr., 290 AD2d 350 (1st Dept 2002). 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-62308,62310,CM-62324 (September 20, 2000; Corbett, Jr., J.).
Here, although the Claimant has satisfactorily established that a Notice of Intention to file a claim was served upon the Office of the Attorney General on May 27, 2003, he has not established 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 108105 is hereby dismissed for a lack of jurisdiction.
[2]

Let judgment be entered accordingly.

November 16, 2006
White Plains, New York

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




[2]. The Court notes that it is too late to seek relief pursuant to Court of Claims Act §§10(6) and (8) given a date of accrual of April 3, 2003.