New York State Court of Claims

New York State Court of Claims

OWUSU v. THE STATE OF NEW YORK, #2007-038-563, Claim No. 113094, Motion Nos. M-73638, M-73640


Defendant’s motion to dismiss for lack of service of claim denied as premature; claimant served notice of intention, and time to serve claim had not yet expired. Claimant’s motion for change of venue denied without prejudice where claimant does not allege that venue is improper, and offered no proof documenting the reasons for the requested change

Case Information

1 1.The caption has been amended sua sponte to reflect The State of New York as the only proper defendant.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
The caption has been amended sua sponte to reflect The State of New York as the only proper defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
M-73638, M-73640
Cross-motion number(s):

Claimant’s attorney:
Defendant’s attorney:
ANDREW M. CUOMO, Attorney General of the State of New York
Eileen E. Bryant, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
October 1, 2007

Official citation:

Appellate results:

See also (multicaptioned case)


This claim seeks damages flowing from the alleged torts of claimant’s employer, the New York State Insurance Department. Defendant asserts that claimant has not served a copy of the claim on the Attorney General, and moves to dismiss the claim for failure to comply with Court of Claims Act §11(a). Claimant opposes the motion and has also made a motion to change the venue of this claim from Albany County to New York County.[2] The Claims Bureau of the Office of the Attorney General received a notice of intention to file a claim from claimant on December 14, 2005 (see Bryant Affirmation, Exhibit C). The instant claim was filed in the Court of Claims on December 11, 2006. Defendant has submitted an affidavit of a Senior Clerk in the Office of the Attorney General, which demonstrates that the claim has not been served upon the Attorney General. Claimant has submitted a letter in opposition to the motion, in which he refers to a United States Postal Service receipt indicating that the Office of the Attorney General received “process” from him on December 14, 2006; claimant’s submission is not, however, in admissible form, and it is substantively insufficient to conclusively contradict defendant’s proof that it was not served with the claim. Nevertheless, defendant’s motion cannot be granted.

Court of Claims Act § 11(a) requires that the claim be served upon the Attorney General by certified mail, return receipt requested. The method of service is not, however, the sole consideration, as Court of Claims Act § 10 sets forth the various time periods within which the claim must be filed and served. To warrant dismissal, defendant’s motion must demonstrate not only that the claim was not served upon it, but that the time within which to do so has expired. The expiration of claimant’s time rests upon the theory of defendant’s alleged liability, and the date of accrual of the claim (see Court of Claims Act § 10).

The Notice of Intention served upon the Attorney General asserts that claimant’s employer, the New York Insurance Department, has subjected claimant to “adverse employment actions . . . [such as] wage/salary garnishment, salary withholdings, loss of leave credits . . . [and] suspension] from employment for about one year now” (Barringer Affidavit, Exhibit C). These allegations may be construed as sounding in negligence or intentional tort, and thus, the service of a Notice of Intention may have extended claimant’s time to serve the claim by either two or one years after the accrual of the claim, depending on the nature of the tort (see Court of Claims §§ 10[3]; 10[3-b]).

Defendant offers no argument that claimant’s time to serve the claim has expired. Indeed, defendant’s motion does not address the nature of the claim, or its possible date of accrual. It does not acknowledge or address claimant’s contention – made in the Notice of Intention – that the claims “arise on continuous time-basis” and are thus subject to a continuous date of accrual. In light of these omissions, the Court is unable to consider or determine the merit of defendant’s motion, and it must therefore be denied.

Turning to claimant’s unopposed motion to change venue from Albany County to New York County, upon the filing of this claim, the Clerk of the Court of Claims determined that the claim accrued in Albany County. Claimant asserts that substantially all of the acts complained of allegedly occurred in New York County, and that the convenience of witnesses would be served by the requested change of venue. Claimant’s motion is supported only by his own, conclusory affidavit regarding these facts. Because the motion is not supported by any documentation of the facts of the claim or the identity of the potential witnesses, or the anticipated scope and materiality of testimony of such witnesses (see Jacobs v Banks Shapiro Gettinger Waldinger & Brennan, LLP, 9 AD3d 299 [1st Dept 2004]; Vasta v Village of Liberty, 235 AD2d 1006 [3d Dept 1997]; O’Brien v Vassar Bros. Hosp., 207 AD2d 169 [2d Dept 1995]), the motion will not be granted.

Accordingly, it is

ORDERED, that defendant’s Motion No. M-73640 is DENIED, and it is further ORDERED, that claimant’s Motion No. M-73638 is DENIED without prejudice.

October 1, 2007
Albany, New York

Judge of the Court of Claims

Papers considered

(1) Claim, filed December 11, 2006;

(2) Notice of Motion to Dismiss, dated May 2, 2007;

(3) Affirmation of Eileen E. Bryant, AAG, dated May 2, 2007;

(4) Affidavit of Janet A. Barringer, sworn to April 30, 2007, with exhibits A-C;

(5) Response to Defendant’s Motion to Dismiss, filed June 18, 2007, with exhibits 1-3;

(6) Notice of Motion, dated June 7, 2007;

(7) Affidavit of Kwame Owusu in Support of Motion to Change Venue, sworn to June 15, 2007.

[2].Venue in the Court of Claims is by district, not county (see 22 NYCRR § 206.4).