New York State Court of Claims

New York State Court of Claims

SIMPKINS v. THE STATE OF NEW YORK, #2007-028-500, Claim No. 110172, Motion No. M-72001


In response to an Order to Show Cause issued by the Court, requesting written submissions from the parties relating to service of the Claim, Claimant proved and Defendant acknowledge only that a Notice of Intention, not the Claim itself, was properly served on Defendant. Claim is dismissed.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

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

Claimant’s attorney:
Defendant’s attorney:
BY: Elyse J. Angelico, Esq.Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
January 10, 2007

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers were read on the Court’s own motion for clarification regarding service of this claim:

1. Order to Show Cause, issued by the Court;

2. Letter of Michael Simpkins, pro se, with annexed Exhibits;

3. Affirmation of Elyse J. Angelico, AAG, with annexed Exhibits; and

4. Supplemental Affidavit of Tasha Hunter-Tabron, Clerk, Claims Bureau, New York State

Department of Law

Filed papers: Claim

By an Order to Show Cause, filed July 19, 2006, the Court requested both parties to submit written statements relating to service of this claim. The Order specifically directed the following:
Claimant should submit affidavits establishing personal service or a copy of the certified mail, return receipts evidencing proper service by that alternative method. If defendant wishes to assert that the claim was not served on the Attorney-General, that statement should come from someone with personal knowledge of the contents of files and records of the Department of Law. . .
The Court’s own file shows that the Claim in this action was filed with the Court on December 2, 2004, and paragraph 5 of the Claim states that a Notice of Intention to File a Claim was served on the Attorney General on October 11, 2004. Annexed to the Claim is an Affidavit of Service, executed by Claimant, which states that he served a copy of the Claim on the Attorney General by depositing it in the “official depository” maintained by the Department of Correctional Services. For the date that this action was taken, the affidavit lists only “Nov ______, 2004.” It was notarized on November 23, 2004.

In response to the Order to Show Cause, Claimant submitted a letter stating that he was submitting copies of the following documents: the Affidavit of Service of the “Intention to File a Claim;” the Affidavit of Service for the Claim itself; and “the copy of the Certified Mail Receipt also addressed to the Att. General.” Attached to Claimant’s letter were 1) an Affidavit of Service, stating that a Notice of Intention to File a Claim was served on the Attorney General, by certified mail, return receipt requested (hereinafter CMRRR), on October 1, 2004 and 2) a photocopy of a the “certified mail, return receipt” stub that the sender of such mail retains (Simpkins letter, Exhibit). This stub, which is stamped by postal authorities, establishes that on October 12, 2004 Claimant sent something to the Attorney General’s office in Albany by CMRRR; it does not establish that the document was received by the Attorney General. Proof of receipt of CMRRR mail is provided by the “green card,” which is signed by a person receiving the mail and then returned to the sender.

The initial response from Defendant indicated only that a review of files revealed “no record that a claim in the above-captioned matter has been served on the Attorney General” (Angelico Affirmation, Exhibit B, ¶ 4). This response was considered unacceptable because, as was stated in a subsequent letter from the Court, any initial document such as a Claim or Notice of Intention is unlikely to bear the Court-designated Claim number and, therefore, that it is more helpful to be provided with a list and description of all documents served on the Attorney General by the individual during the relevant time period. The State’s supplemental submission contains such a list.

The first item on that list is described as “Notice of Intention to File a Claim Received by Certified Mail, Return Receipt Requested Albany, New York (OAG No. 04-014273-O) and was received on October 14, 2004. Although the list contains a number of documents subsequently received from the Court of Claims in relation to Claimant, the next item that was served by Claimant himself was another Notice of Intention received April 10, 2006.

In summary, Claimant states that in connection with this action, he mailed to Defendant two documents, a Notice of Intention and a Claim; the Affidavits of Service executed by Claimant indicate that the Notice of Intention was mailed in October 2004, while the Claim was mailed in November 2004; and Claimant provided documentary proof only that something was mailed, by CMRRR, in October 2004. Defendant acknowledges receipt of a Notice of Intention in October 2004, but has no record that anything else was received from Claimant until April 2006, when he served another Notice of Intention.

The Court concludes from this evidence that while Claimant properly served a Notice of Intention on Defendant, he did not serve a copy of the Claim itself, as required by Court of Claims Act § 11(a). The requirements set forth in Court of Claims Act § 11 are jurisdictional in nature and, as such, must be strictly construed (see Finnerty v New York State Thruway Auth., 75 NY2d 721, 722; Commack Self-Serv. Kosher Meats v State of New York, 270 AD2d 687). A claimant’s failure to serve a copy of the claim on the Attorney General personally or by certified mail, return receipt requested is a fatal jurisdictional defect and deprives this Court of the power to hear the claim (Dreger v New York State Thruway Auth., 81 NY2d 721, 724; Bogel v State of New York, 175 AD2d 493).

Consequently, Claim No. 110172 is dismissed on the ground that it was never served on Defendant.

January 10, 2007
Albany, New York

Judge of the Court of Claims