New York State Court of Claims

New York State Court of Claims

SMITH v. THE STATE OF NEW YORK, #2008-009-024, Claim No. 106815, Motion No. M-75155


Synopsis


Defendant’s motion to dismiss the claim for failure to serve the claim upon the Attorney General was denied.

Case Information

UID:
2008-009-024
Claimant(s):
WILLIAM SMITH
Claimant short name:
SMITH
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
106815
Motion number(s):
M-75155
Cross-motion number(s):

Judge:
NICHOLAS V. MIDEY JR.
Claimant’s attorney:
WILLIAM SMITH, Pro Se
Defendant’s attorney:
HON. ANDREW M. CUOMO
Attorney General
BY: Bonnie Gail Levy, Esq.,
Assistant Attorney General
Of Counsel.
Third-party defendant’s attorney:

Signature date:
September 23, 2008
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

Defendant has brought this motion seeking to dismiss the claim for lack of jurisdiction, based upon a failure to comply with §§ 10 and 11 of the Court of Claims Act. Specifically, defendant alleges that the claimant failed to serve his claim on the Attorney General as prescribed by § 11.

The following papers were considered by the Court in connection with this motion:
Notice of Motion to Dismiss Claim, Affirmation, with Exhibits (including Affidavit of Janet A. Barringer) 1,2


Filed Papers: Claim, Verified Answer, Defendant’s First Set of Interrogatories

Claimant has not submitted any response to this motion.

In support of this motion, defendant has submitted the Affidavit of Janet A. Barringer, Senior Clerk in the Albany Office of the Attorney General of the State of New York (Exhibit 1 to Items 1,2), sworn to on June 9, 2008, averring that after a thorough search of the files maintained by the Attorney General, she did not find any record of a claim having been served upon the Attorney General. Additionally, the Court has reviewed the claim file maintained by the Clerk of the Court of Claims and finds that claimant has failed to file any Affidavit of Service with regard to his claim.

Despite the Affidavit of Ms. Barringer, however, this review of the Court’s file also reveals that a Verified Answer and a set of Interrogatories were filed with the Clerk of the Court on December 23, 2002. The existence of an answer to this claim indicates to the Court that there has been service of the claim on the defendant in some manner, even though there is no affidavit or other direct evidence of service.

Since issue has been joined in this particular matter, the jurisdictional defenses set forth in Court of Claims Act § 11(c) must be considered. Despite the fact that claimant has failed to refute the allegations of non-service by the defendant, and has failed to offer any proof of service, § 11(c) dictates that when the defendant fails to raise a defect in the timing or manner of service either prior to or in its answer, the defense is waived and the Court shall not dismiss the claim for such failure. Although the defendant’s answer in this matter contains ten affirmative defenses, none of them allege a defect in service.

The Court also notes that the defendant has now raised the issue of non-service in 2008 for the first time, almost six years after the claim was filed and answered. This is exactly the type of situation which the Legislature hoped to cure when it enacted § 11(c) in 1990. One of the concerns raised at that time was the practice of certain Assistant Attorney Generals “playing possum”, i.e., waiting until the statute of limitations had passed before raising improper or untimely service, especially in the cases of pro se litigants. Such practice has been characterized as an “unfair surprise” (Sinacore v State of New York, 176 Misc 2d 1, 5-7). While not suggesting that the Assistant Attorney General handling this claim has engaged in such practice, the end result to claimant would unfortunately be the same if this motion were to be granted.

Accordingly, based on the foregoing, the Court finds that defendant has waived the defense of non-service as a basis for dismissal of the claim.

Therefore, it is

ORDERED, that Motion No. M-75155 is hereby DENIED.

September 23, 2008
Syracuse, New York

HON. NICHOLAS V. MIDEY JR.
Judge of the Court of Claims