New York State Court of Claims

New York State Court of Claims

GAINES v. THE STATE OF NEW YORK, #2007-028-507, Claim No. 110266, Motion No. M-72135


Motion commenced by the Court’s Order to Show Cause, to determine if a Claim had been served on the Attorney General, is adjourned for supplemental submissions because neither party’s submissions constituted adequate proof on the question. The State’s response, which merely indicated that a certain claim had not been served, was unacceptable, and Claimant failed to serve his responsive papers on Defendant.

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: Frederick H. McGown, III, Esq.Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
January 12, 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. Affidavit of Janet A. Barringer, Senior Clerk, New York State Department of Law, with annexed Exhibit;

3. “Affidavit” of Gerald Gaines, pro se; and

4. Letters of Frederick H. McGown, III, AAG, with annexed documents.

Filed papers: Claim

By an Order to Show Cause, filed August 15, 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 receipt evidencing proper service by that alternative method. If defendant wishes to assert that the claim was not served on the Attorney General, a statement should come from someone with personal knowledge of the contents of the files and records of the Department of Law. . .
Among the relevant papers contained in the Court’s own file is the Claim in this action, which was filed with the Court on December 23, 2004. The Claim alleges that on May 11, 2004, at Clinton Correctional Facility, Claimant was injured when he was assaulted by several correction officers and thereafter denied adequate medical treatment. There is no Affidavit of Service annexed to the Claim, although among the many papers attached to the Claim there is one addressed only to the “Clerk” which states in full:
Dear Clerk
Enclosed you find my claim on Assault by State employee at Clinton Corr. Fac. which I had filed 42 USC 1983 for violate my rights 8th and 14th Amend Const. regarding excessive used force and denied adequate medical care for serious injury.

Please be adequate that I don’t have any funds to make copy to sent to Attorney General.

I’ve would appreciate it very much if you could be kind enough to make sure the Attorney General will be served in this matter.
The Court’s file also contains a letter from defense counsel sent in connection with a prior motion in this action, stating that the Attorney General “was never served with the Claim No. 110266" but was in receipt of Claim No. 110343, “which relates to the events of May 11, 2004.”

In response to the Order to Show Cause, Defendant has submitted the affidavit of Janet A. Barringer, a Senior Clerk in the Office of the Attorney General and someone familiar with the record keeping system of that office. She states that, based on her review of the applicable records, she concluded that Claim No. 110266 was never served on the Attorney General. Attached to her affidavit are copies of two documents sent by the Court which bear the instant claim number: the original acknowledgment letter from the Chief Clerk and an Order granting Claimant’s request for a reduction in the filing fee for this action.

Claimant responded by providing photocopies of two certified mail, return receipts (#7001 2510 0004 5395 3353 and #7001 2510 0004 5395 3346) establishing that two separate documents were received by the Office of the Attorney General on November 22, 2004.

At around the same time, Claimant sent to the Office of the Attorney General a letter stating that he had two certified mail return receipts in his possession relating to two Notices of Intention. These receipt numbers are different and Defendant has supplied copies of the documents received :

#7003-1010-0004-7063-1902 - Notice of Intention relating to an assault of unstated date, received by the Attorney General on June 7, 2004 and

#7003-1010-0004-7062-7523: Notice of Intention relating to a September 28, 2004 incident, received by the Attorney General on October 25, 2004.

Because Defendant did not provide the Court with a copy (or at least description) of all documents received from Claimant during the relevant time period[1] and because Claimant did not serve on the Attorney General a copy of his response to the Order to Show Cause containing the first-mentioned return receipt numbers, it is not possible for the Court to determine at this time whether Claim No. 110266 was served on the Attorney General.

The return date of Motion No. M-72135 is hereby adjourned to March 21, 2007, so that both parties may make supplemental submissions to the Court.

January 12, 2007
Albany, New York

Judge of the Court of Claims

[1]. As this Court has stated elsewhere the flat statement that a certain Claim was not served on the Attorney General is unacceptable because “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.” (Simpkins v State of New York, Claim No. 110172, Motion No. M-72001, Sise, P.J. [unpublished Decision and Order]).