Bernard Gollomp alleges “[c]ontinuing and ongoing violations of laws,
rules and regulations” relative to various provisions of the Environmental
Conservation Law, Highway Law, Public Officers Law and other state and federal
statutes, commencing on November 22, 1994 and continuing to date, in Claim
Number 111493 filed in this Court on October 13, 2005. An affidavit of service
form attached to the Claim indicates that on October 12, 2005 a Jennifer Swartz
- presumably an individual in Counsel for the Claimant’s office - mailed
the Claim via certified mail, return receipt requested somewhere, but no entity
or address is indicated.
In this pre-answer motion to dismiss, Defendant seeks dismissal of the Claim
premised upon the Claimant’s failure to timely and properly serve the
Claim upon the office of the Attorney General as required, upon a failure to
state a cause of action, and upon a failure to comply with the pleading
requirements of the Court of Claims Act and the Uniform Trial Court Rules
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 only 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).
Court of Claims Act §11(a)(i) indicates that “[p]ersonal service
upon the attorney general shall be made in the same manner as described in
section three hundred seven of the civil practice law and rules.” Civil
Practice Law and Rules §307 requires that personal service upon the State
be by hand delivery to the Attorney General or to an Assistant Attorney General,
not, for example, to someone simply authorized to accept service for other
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).
Although, in the standard civil case, where independent process servers attest
to the facts of service, an affidavit of service constitutes prima
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
, at 377; cf. Persaud v Teaneck Nursing Center, Inc.
290 AD2d 350 (1st Dept 2002), here the affidavit of service filed with the Claim
is an empty piece of paper, because it does not even indicate who was
In support of the present motion, Defendant has appended an Affidavit by
Catherine Naveed, a Clerk in the Claims Bureau of the New York City Office of
the Attorney General, whose duties include familiarity with the record keeping
system of the office generally, and review of same. [Affidavit by Catherine
Naveed, ¶¶ 1, 2]. She reports that her search of the system, and her
inquiries to the various branch offices concerning this Claim, revealed that the
only document received was a copy of a letter from this Court directed to
Claimant’s counsel noting the filing date of the Claim. [ibid.
¶¶ 4, 5].
Claimant’s Counsel indicates that on October 20, 2005 Claimant
“served a copy of the Claim to the New York State Office of the Attorney
General . . . ” [Affidavit in Support of Opposition by James E. Morgan,
¶3]. He does not indicate how the Claim was served, nor does he furnish
proof that it was served either by certified mail, return receipt requested, or
personally upon the Attorney General or an Assistant Attorney General. He notes
that the copy of the Claim appended to the Attorney General’s moving
papers contains a stamp on it indicating “RECEIVED NYS OFFICE OF THE
ATTORNEY GENERAL LITIGATION BUREAU” dated October 20, 2005 [See
Defendant’s Memorandum of Law, Exhibit B], and urges that the present
motion is thus “whimsical” in suggesting that the Attorney
General’s Office has not been served. [Affidavit in Support of Opposition
to Motion, ¶8].
While certainly there is an element of a right hand/left hand disconnection, in
that the Assistant Attorney General writes in her Reply Affirmation that indeed
a copy of the Claim was received from one of the State agencies and then stamped
when it made its way through the Attorney General’s Office, at the same
time that Ms. Naveed avers that only a letter from the Clerk’s Office was
received, the question of whether personal jurisdiction has been achieved
remains the Claimant’s burden, and is not a whimsical concern.
Indeed, Counsel for Claimant has simply missed the point.
Failing to properly serve the Claim or a Notice of Intention to serve a Claim
within ninety (90) days of its accrual means that the Court does not have
jurisdiction, and the Claim must be dismissed. Delivery does not appear to have
been made to either the Attorney General, or an Assistant Attorney General, as
required to effectuate personal service upon the State of New York, [See
Civil Practice Law and Rules §307], nor is there any indication that the
Claim was served by certified mail, return receipt requested upon the Attorney
Here, the Claimant has not established - as was his burden - that he served
the Claim upon the Attorney General as required by Court of Claims Act
§11(a), and the Defendant has raised the jurisdictional issue in a timely
motion. Accordingly, the Claim is hereby dismissed on that basis alone.
Additionally, the Claimant does not state a cause of action against the State
of New York, by merely alleging that there were “acts or omissions of the
Defendants” relative to a laundry list of State and Federal statutes, at
some unspecified time and place, nor does the pleading comply with the statutory
and regulatory requirements for a pleading justiciable in the Court of Claims.
The description does not state “. . . the time when and place where such
claim arose, [and] the nature of same . . . ” See Court of Claims
Act §11 b; 22 NYCRR §206.6. Indeed from a fair reading of the four
corners of the Claim and the vague language contained therein, the Court cannot
tell the nature of the Claim, and by what conduct the State is alleged to have
caused this Claimant any injury.
Accordingly, Defendant’s motion to dismiss [M-71074] is granted in all
respects, and Claim Number 111493 is dismissed in its entirety.