New York State Court of Claims

New York State Court of Claims

GOLLOMP v. THE STATE OF NEW YORK, #2006-030-541, Claim No. 111493, Motion No. M-71074


Case Information

1 1.The caption has been amended to reflect the only proper defendant.
Claimant short name:
Footnote (claimant name) :

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):
Motion number(s):
Cross-motion number(s):

Claimant’s attorney:
Defendant’s attorney:
Third-party defendant’s attorney:

Signature date:
May 22, 2006
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers numbered 1 to 6 were read and considered on Defendant’s motion

to dismiss:

1,2 Notice of Motion; Memorandum of Law and attached exhibits

3,4 Affidavit in Support of Opposition to Motion to Dismiss by James E. Morgan, Attorney for Claimant and attachment; Memorandum of Law

  1. Reply Affirmation by Rachel Zaffrann, Assistant Attorney General and attached exhibit
  1. Filed Papers: Claim
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 applicable thereto.

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 reasons.

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 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 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 served.[2]

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 General’s Office.

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.

May 22, 2006
White Plains, New York

Judge of the Court of Claims

[2]. Perplexingly, there is an affidavit of service attached to Claimant’s opposition papers indicating that on February 1, 2006 the deponent mailed a copy of the Notice of Claim and the Claim to the Attorney General’s Office by regular mail. Taken in context, it would appear that this is actually intended as an affidavit of service concerning the opposition papers.