New York State Court of Claims

New York State Court of Claims

LONGI v. THE STATE OF NEW YORK, #2006-030-527, Claim No. 111333, Motion No. M-71336


Synopsis



Case Information

UID:
2006-030-527
Claimant(s):
CHARLES LONGI
Claimant short name:
LONGI
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
111333
Motion number(s):
M-71336
Cross-motion number(s):

Judge:
THOMAS H. SCUCCIMARRA
Claimant's attorney:
MALAGON & ASSOCIATESBY: MAURICIO A. MALAGON, ESQ.
Defendant's attorney:
HON. ELIOT SPITZER, NEW YORK STATE ATTORNEY GENERALBY: ELYSE J. ANGELICO, ASSISTANT ATTORNEY GENERAL
Third-party defendant's attorney:

Signature date:
April 14, 2006
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers numbered 1 to 4 were read and considered on the disposition of the


Court's Order to Show Cause returnable April 5, 2006:

  1. Order to Show Cause dated February 27, 2006
  1. Letter by Elyse J. Angelico, Assistant Attorney General dated March 15, 2006 and attachments, including Affidavit of Valerie Clerk, Clerk
  1. Stipulation to Adjourn dated March 15, 2006
  1. Filed Papers: Claim
After carefully reviewing the papers issued and submitted and the applicable law the Order to Show Cause is resolved as follows:

Initially, the Court is satisfied that Claimant was duly served with a copy of the Order to Show Cause, issued by the Court after its review of the Claim herein, by service upon Counsel of record.

Claimant alleges in Claim Number 111333 that on February 5, 2004 he was injured when he slipped and fell while exiting his vehicle at the Palmer Road exit of the Saw Mill Parkway in Yonkers, suffering serious injury. Claimant alleges that a Notice of Intention to file a Claim was served on the Office of the Attorney General on April 8, 2004. The Claim itself was filed in the Office of the Chief Clerk of the Court of Claims on September 6, 2005. No proof of service of the Claim on the Office of the Attorney General has been filed. No Answer has been served or filed by the Attorney General.

Valerie Clerk, a clerk in the Claims Bureau of the New York City Office of the Attorney General of the State of New York, indicates that one of her duties is familiarity with the record-keeping system of that office regarding process served, including Notices of Intention to file Claims and Claims. Her search of the records revealed that a Notice of Intention relative to this Claimant was served[1] upon that office on April 26, 2004. [Affidavit by Valerie Clerk, ¶4]. Additionally, a Notice of Intention was also served - unnecessarily - upon the New York State Department of Transportation. [id.]. No Claim, however, has been served upon the Office of the Attorney General. [id.].

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. A 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).

Court of Claims Act §11(a) requires that any Notice of Intention, as well as 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. Service is complete when it is received in the Attorney General's Office. Court of Claims Act §11(a)(i). As noted, personal service is accomplished by service upon the Attorney General or an Assistant Attorney General. Civil Practice Law and Rules §307.

Failure to properly serve and file a claim within the limitations period are fatal jurisdictional defects requiring dismissal. Philippe v State of New York, 248 AD2d 827 (3d Dept 1998).

No proof of service was filed with the Chief Clerk by Claimant, in the form of a sworn affidavit with a notary's signature, within ten (10) days of any service upon the Attorney General. See 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, Motion Nos. M-62308, M-62310, CM-62324 (unreported decision signed September 20, 2000; Corbett, Jr., J.).

Accordingly, Claimant has failed to establish, by a fair preponderance of the credible evidence, that the Attorney General was properly and timely served with a copy of the Claim as required by Court of Claims Act §§10 and 11. Claim Number 111333 is hereby dismissed for a lack of jurisdiction.

April 14, 2006
White Plains, New York

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




[1] Since Defendant does not indicate the manner of service presumably it was served properly.