New York State Court of Claims

New York State Court of Claims

SCOTT v. THE STATE OF NEW YORK, #2007-030-003, Claim No. 108991


Synopsis


Claimant alleges defendants failed to provide him with adequate medical care while he was incarcerated at Downstate Correctional Facility. No Answer served; no proof of service of the claim on file with Clerk [22 NYCRR §206.5(a)]; no proof otherwise that claim served personally or by certified mail, return receipt requested. Claimant did not establish that he served the claim upon the Attorney General as required by Court of Claims Act §11(a), the Defendant has raised the jurisdictional issue in a timely oral motion at scheduled trial date. Claim dismissed

Case Information

UID:
2007-030-003
Claimant(s):
KEMORLEY SCOTT
1 1.The caption has been amended to reflect the only proper defendant.
Claimant short name:
SCOTT
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):
108991
Motion number(s):

Cross-motion number(s):

Judge:
THOMAS H. SCUCCIMARRA
Claimant’s attorney:
KEMORLEY SCOTT, 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 9, 2007
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)

.
Decision
Kemorley Scott alleges in Claim Number 108991 that Defendant’s agents failed to provide him with adequate medical care while he was incarcerated at Downstate Correctional Facility. Trial of the matter was scheduled to proceed on December 8, 2006.
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, Defendant provided an Affidavit from Janet A. Barringer, a Senior Clerk in the Albany Office of the Attorney General of the State of New York, dated October 16, 2006 in which it is indicated that neither a Notice of Intention or Claim was ever received by the Attorney General’s Office. [Defendant’s Exhibit “A”]. The only document received was a copy of a letter from the Chief Clerk’s Office dated March 15, 2004 directed to Claimant indicating that a claim had been filed with the Court, and assigning the Claim number. [Id.]. 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, M-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 had served the claim by certified mail, but did not have any paperwork because of his movement from facility to facility. He indicated that he could get proof within sixty (60) days. In light of the Claimant’s indication, the Court granted Claimant an additional sixty (60) days from the trial date - or February 6, 2007 - to forward proof of service to the Court. While the Court received a letter from the Claimant on January 29, 2007 further describing the subject matter of his claim, he did not forward proof of service of the claim as directed.
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 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 108991 is hereby dismissed for a lack of jurisdiction. Let judgment be entered accordingly.

February 9, 2007
White Plains, New York

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