New York State Court of Claims

New York State Court of Claims

COOPER v. THE STATE OF NEW YORK, #2007-030-002, Claim No. 108760


Synopsis


Defendant’s motion to dismiss the claim on the ground that the Attorney General’s office was never served with the Claim granted. No Answer served or filed. Claimant was not able to produce receipts showing that a Notice of Intention was served certified mail, return receipt requested, nor was he able to furnish any proof of service of the Claim by the same means. He stated that he “believed” he had served the claim but could not produce proof. He also said that he mailed four copies but thought that “it wasn’t certified.” Although Claimant given additional fourteen (14) days from the trial date to provide proof of service to the Court, none provided. Claimant has not been able to establish 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. Claim Number 108760 is hereby dismissed for a lack of jurisdiction.

Case Information

UID:
2007-030-002
Claimant(s):
EMMANUEL COOPER
1 1.The caption has been amended to reflect the only proper defendant.
Claimant short name:
COOPER
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
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):
108760
Motion number(s):

Cross-motion number(s):

Judge:
THOMAS H. SCUCCIMARRA
Claimant’s attorney:
EMMANUEL COOPER, PRO SE
Defendant’s attorney:
HON. ELIOT SPITZER, NEW YORK STATE ATTORNEY GENERAL
BY: JEANE STRICKLAND SMITH, ASSISTANT ATTORNEY GENERAL
Third-party defendant’s attorney:

Signature date:
February 13, 2007
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision
Emmanuel Cooper alleges in Claim Number 108760 that Defendant’s agents negligently caused him serious injury to his ear in the form of hearing loss during a loud construction project, while he was incarcerated at Green Haven Correctional Facility. Trial of the matter was scheduled to proceed on January 26, 2007.
On that date, counsel for Defendant made a motion to dismiss the claim on the ground that the Attorney General’s Office was never served with the Claim. In support of this contention, the Assistant Attorney General indicated that a search of their own records had been conducted on January 25, 2007, and she reported that the only documents concerning this Claim the Attorney General’s Office had received were the letter from the Court of Claims assigning a claim number, and the Order - again from the Court of Claims - reducing the filing fee. Attempts to further support the argument by submitting an Affidavit from a clerk in the Claims Bureau of the Albany Office of the Attorney General of the State of New York, responsible for managing the delivery of mail, had been attempted before the trial date as well, but the Assistant Attorney General indicated that the affidavit faxed appeared to be incomplete and she could not submit it. Notably, 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, M-62308, 62310, CM-62324 (September 20, 2000, Corbett, Jr., J.).
Claimant was not able to produce receipts showing that a Notice of Intention was served certified mail, return receipt requested, nor was he able to furnish any proof of service of the Claim by the same means. He stated that he “believed” he had served the claim but could not produce proof. He also said that he mailed four copies but thought that “it wasn’t certified.” The Court granted Claimant an additional fourteen (14) days from the trial date to provide proof of service to the Court. It is now February 13, 2007. No such proof has been received.
The filing and service requirements contained in §§10 and 11 of the Court of Claims Act 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 complete when it is received in the Attorney General’s Office. Court of Claims Act §11(c). 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).
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).
Here, the Claimant has not been able to establish that he served the Claim upon the Attorney General as required, and the Defendant has raised the jurisdictional issue in a timely motion. Thus Claimant has failed to establish, by a fair preponderance of the credible evidence, that the Attorney General was served with a copy of the claim as required by Court of Claims Act §11(a) . Accordingly, Claim Number 108760 is hereby dismissed for a lack of jurisdiction.
Let judgment be entered accordingly.

February 13, 2007
White Plains, New York

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