New York State Court of Claims

New York State Court of Claims

BOWE v. THE STATE OF NEW YORK, #2008-029-053, Claim No. 110538, Motion No. M-75487


Defendant’s motion to dismiss based on alleged non-service of claim is denied. Claimant established that she in fact mailed a notice of intention and a claim in the same envelope and defendant failed to appreciate that the envelope contained both documents.

Case Information

TRACEY BOWE, 93-G-1338
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant’s attorney:
Defendant’s attorney:
ANDREW M. CUOMO, ATTORNEY GENERALBy: Elyse J. Angelico, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
November 19, 2008
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


When this claim was scheduled for trial for October 2, 2008, defendant made the instant motion, alleging that the court lacked jurisdiction because a copy of the claim was never served on defendant as required by section 11(a) of the Court of Claims Act. The motion was made returnable on September 24, 2008. At trial the court received submissions as well as argument from claimant and defendant. The trial was adjourned and the court reserved decision on the motion.

In support of the motion, defendant submitted an affidavit from Tasha Hunter-Tabron, a clerk in the Claims Bureau of the Attorney General’s New York City Office, stating that she conducted a “thorough search” of the Attorney General’s computer filing system and found no record that a claim was ever served on defendant; indeed she found that the only document received by the Attorney General concerning claimant was a letter from the Clerk of the Court attaching a copy of an order concerning the filing fee.

In response, claimant submitted a letter asserting that she had in fact served a copy of the claim on defendant at the same time she filed a copy with the court. She attached two disbursement requests, one requesting postage of $4.88 for certified mail to the Court of Claims and one requesting postage of $4.88 for certified mail to the Attorney General. She also attached copies of two certified mail receipts, one received by the court on January 31, 2005 and one received by the Albany Office of the Attorney General on the same date.

Responding to claimant’s submission, defendant submitted a second affidavit from Ms. Hunter-Tabron, titled an “Amended Affidavit.” Therein, she states that she conducted “another search” of the Attorney General’s computer filing system and this time discovered a Notice of Intention served by claimant on January 31, 2005.

When the parties appeared in court, defendant maintained its position that the claim had never been served and contended that the January 31, 2005 service documented by the signed return receipt referred only to a notice of intention, not the claim. Claimant demurred, contending that her mailings to the Attorney General and the court were identical and that both contained copies of a notice of intention and the claim. In support of that contention, she referred to a letter she wrote to the Clerk of the Court on August 17, 2006 (which is contained in the court’s file) inquiring as to the status of her claim. In that correspondence she referenced a letter she received from the Clerk’s Office, dated February 1, 2005, informing her that her claim was being returned due to her failure to pay or apply for a reduction of the filing fee. She stated that, after she received that letter, she re-filed the claim, which accounts for the February 22, 2005 filing date.

Subsequent to the parties’ appearance, the court checked the Clerk’s Office’s records and ascertained that the claim was in fact originally received in that office on January 31, 2005. Additionally, claimant’s in-court statement that her two certified mailings – both with the same postage – had identical contents had the ring of truth. In contrast, defendant’s representations as to what it received from claimant have been less than accurate. Accordingly, the court finds that claimant was telling the truth when she stated that the mailing that was received by the Attorney General on January 31, 2005 contained a copy of the claim in addition to a notice of intention. The court finds the most likely scenario to be that whoever received that mailing at the Attorney General’s Office did not appreciate that the mailing contained two documents and logged it into the system as a notice of intention only.

Thus, the court finds that a copy of the claim was in fact served on defendant on January 31, 2005 by certified mail, return receipt requested and denies defendant’s motion to dismiss. Additionally, the court finds that defendant’s failure to answer the claim was unintentional. Accordingly, defendant is afforded a period of 30 days from the filing date of this decision and order in which to interpose an answer, after which the claim will be returned to the trial calendar.

November 19, 2008
White Plains, New York

Judge of the Court of Claims

Papers considered:

Notice of Motion, Affirmation and Exhibit

Claimant’s Letter Opposition with Five Exhibits

Defendant’s Amended Affidavit and Exhibits

August 17, 2006 letter to Court from Claimant, contained in court’s file

Printout from Court’s Computer Filing System