New York State Court of Claims

New York State Court of Claims

MOORE v. STATE OF NEW YORK, #2007-037-003, Claim No. 112220, Motion No. M-72532


Synopsis


Claim dismissed as being jurisdictionally defective due to Claimant’s failure to serve a copy of the claim upon the Attorney General.

Case Information

UID:
2007-037-003
Claimant(s):
KEVIN MOORE, 99-B-1943
Claimant short name:
MOORE
Footnote (claimant name) :

Defendant(s):
STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
112220
Motion number(s):
M-72532
Cross-motion number(s):

Judge:
JEREMIAH J. MORIARTY III
Claimant’s attorney:
Kevin Moore, Pro Se
Defendant’s attorney:
Hon. Andrew M. Cuomo
New York State Attorney General
By: Richard B. Friedfertig, Esq.Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
January 25, 2007
City:
Buffalo
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following documents were read and considered with respect to the Court’s order to show cause relating to service of the claim:
1. Order to show cause dated November 14, 2006;

2. Unsworn and undated statement of pro se Claimant Kevin Moore with annexed

Exhibits;[1]

3. Affidavit of Assistant Attorney General Richard B. Friedfertig sworn to

November 28, 2006, with annexed affidavit of Janet A. Barringer sworn to November 22, 2006, and annexed Exhibits A-B;


Filed papers: Claim filed April 17, 2006.

Pro se Claimant originally named the “N.Y.S. Legal Aid Bureau of Buffalo Inc.” as the sole Defendant, and generally alleged in his claim that the Defendant negligently mishandled a criminal proceeding on his behalf. The claim allegedly accrued on April 7, 2006, in a New York State Courthouse in Buffalo, New York, but there is no mention in the claim as to what actually occurred on that date. Previously, the Court, sua sponte, changed the caption to reflect the State of New York as the only proper Defendant.

Pursuant to § 11 (a) of the Court of Claims Act, a claim must be served upon the Attorney General by personal service or by certified mail, return receipt requested (see Hodge v State of New York, 213 AD2d 766 [1995], app dismissed 87 NY2d 968 [1996]). No answer to the claim was ever filed by the Defendant, raising questions concerning service of the claim on the Attorney General. As a result, on November 14, 2006, this Court issued an order to show cause requesting that the parties submit statements regarding service of the claim.

In response, Defendant submitted an affidavit of Janet A. Barringer, Senior Clerk in the Office of the Attorney General, who stated that she had made a thorough search of the records of the Attorney General’s Office and that there was no indication therein that this claim had ever been served on the Attorney General. The only document she located was a letter from the Chief Clerk of the Court of Claims advising that claim no. 112220 had been filed on April 17, 2006.

In his unsworn statement, Claimant indicates that he was enclosing “Affidavit of Service and receipt for proper mail deliver [sic].” Attached was a copy of a June 16, 2006 letter from a Senior Court Attorney to Claimant advising that claim no. 112220 had been filed on April 17, 2006. Nothing in this letter even addressed the issue of service on the Attorney General. An original Postal Service receipt was also annexed. This receipt indicates that something was sent by certified mail, return receipt requested, to an unknown address in Albany, New York on April 12, 2006.

A review of the file suggests that the receipt attached to Claimant’s statement was actually the receipt for filing of the claim and not for service of the claim on the Attorney General. Attached to the claim as filed is an affidavit of service sworn to by the Claimant on April 10, 2006. According to this affidavit, Claimant mailed his claim by certified mail, return receipt requested, to the “New York State Court of Claims.” Nothing in this affidavit suggests that a duplicate copy of the claim was being served on the Attorney General. In fact, it does not appear that the Claimant even had another copy to serve on the Attorney General. In this regard, the last paragraph of Claimant’s affidavit of service states:
“ If copy of my claim served to the Court of Claims isn’t enough (my original claim) I’ll need a waiver and copies (2) made for the Clerk of the Court of Claims (send to the Clerk) kindly [sic] I am unable to have copies made and will need the N.Y.S. Court of Claims to make the copies for me.”
The claim file also reveals a letter dated May 31, 2006 sent by the Claimant to the office of the Clerk of the Court wherein Claimant requested that “Proof of service of the Claim upon the Defendant” be sent to the assigned Judge. It was this letter request that prompted the letter dated June 16, 2006, copy attached to Claimant’s motion papers, advising Claimant that his claim had been filed on April 17, 2006. Based on Claimant’s affidavit of service and on his correspondence with the office of the Clerk of the Court, it appears that Claimant may have been expecting the Clerk to serve his claim on the Attorney General. Nothing in the Court of Claims Act, however, requires or even permits the Clerk to effect service on the Attorney General for a claimant’s benefit.[2]

Generally, a claimant is required to produce the green return receipt card signed by the recipient when the manner of service is challenged (see Govan v State of New York, 301 AD2d 757 [2003], lv denied 99 NY2d 510 [2003]). Unfortunately, Claimant herein has failed to produce any green return receipt card signed by someone in the Attorney General’s office to establish that the claim had been properly served and received. The filing and service requirements 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 [1989]). No matter how harsh the outcome may seem, the Court is without discretion to waive these requirements (Martinez v State of New York, 282 AD2d 580 [2001], lv denied 96 NY2d 720 [2001]). Because the claim was not served on the Attorney General personally or by certified mail, return receipt requested, it is jurisdictionally defective and must be dismissed.[3]

Accordingly, it is hereby

ORDERED, that claim no. 112220 be dismissed.

The Clerk of the Court is directed to close the file.



January 25, 2007
Buffalo, New York

HON. JEREMIAH J. MORIARTY III
Judge of the Court of Claims




[1]. Because pro se Claimant’s statement is unsworn, the Court may treat it as a nullity. The Court has, however, read and considered Claimant’s statement.
[2]. Apparently, in the past, the Clerk had effected service on the Attorney General if a claimant so requested. Any reference to such a procedure was removed from § 11 of the Court of Claims Act in 1984 (L 1984, c 427, § 1) (see also Loperfido v State of New York, April 13, 2006, Sise, P.J., Claim No. 110163, Motion No. M-70229, Cross-Motion No. CM-70433, UID # 2006-028-546). This and other Court of Claims decisions may be found on the Court’s website at www.nyscourtofclaims.state.ny.us.
[3]. The Court of Claims has no jurisdiction to hear claims against Defendants other than the State of New York and certain entities specified by statute (see Court of Claims Act § 9). Before commencing another action in this Court against the Defendant originally named herein, Claimant should verify the correct name of the entity he wishes to sue and determine which Court has jurisdiction over that entity.