George Velez alleges in his claim that while he was incarcerated at Green Haven
Correctional Facility he was wrongfully issued a misbehavior report and
thereafter wrongfully confined among other causes of action asserted, including
lack of adequate medical care, and bailment. The factual allegations in the
claim all occurred from August 2004 through February 2, 2005. Trial of the
matter commenced on May 9, 2008, but was interrupted for resolution of
defendant’s motion to dismiss the claim based upon this Court’s
alleged lack of personal and subject matter jurisdiction.
On that date defendant moved to dismiss the claim on the basis of a lack of
jurisdiction, in that the Attorney General’s Office was never served with
the claim. In support of this contention, defendant provided an affidavit from
a Theresa Wowk, a clerk in the Albany Office of the Attorney General of the
State of New York, whose duties include familiarity and access to the
recordkeeping system of the Claims Bureau. [Exhibit A]. She indicates in her
affidavit that a letter from the Office of the Chief Clerk of the Court of
Claims acknowledging that a claim had been filed in the Clerk’s Office was
received by the Attorney General’s Office on November 21, 2005, but that
no claim was ever received by the Attorney General’s Office. [Id.].
Notably, no answer was found in the file maintained by the Office of the Chief
Clerk of the Court of Claims.
The claim that was filed in the Court of Claims on October 21, 2005 indicates
that Mr. Velez served a notice of intention to file a claim on the Attorney
General’s Office by certified mail, return receipt requested on February
9, 2005, bearing United States Postal Service [USPS] article number
7004-0750-0004-2299-4737. [See Claim Number 111537, ¶13]. An
affidavit of service Mr. Velez filed with the claim, dated October 14, 2005,
indicates that a “notice of claim” was served upon “the Court
of Dutchess County” by certified mail, and lists the address for that
court at 10 Market Street in Poughkeepsie, New York. Another affidavit of
service filed with the claim references the service of a notice of intention to
file a claim on the Attorney General’s Office on February 9, 2005.
Finding the foregoing not entirely conclusive as to the issue of whether the
claimant served the actual claim on the Attorney General as required, the Court
reserved on defendant’s motion to dismiss and directed the claimant to
furnish satisfactory proof of service of the claim.
By letter dated May 19, 2008, Mr. Velez forwarded photocopies of (1) the
portion of a certified mail receipt attesting to the sender’s payment of
the proper postage and indicating the addressee as the Attorney General’s
Office, stamped by the USPS at Fallsburg, New York, (2) the green return
receipt card and (3) claimant’s disbursement request to the correctional
facility’s mailroom, all dated in February 2005, and all referencing the
same USPS item number. As noted above, the Attorney General’s Office
indicated that it had never received a copy of the claim, and there is no answer
in the file maintained by the Chief Clerk of the Court of Claims.
Court of Claims Act §11(a)(i) provides that “. . . a copy [of the
claim] shall be served upon the attorney general . . . either personally or by
certified mail, return receipt requested . . .” within the time prescribed
in Court of Claims Act §10; and service is complete when it is received in
the Attorney General’s Office. Service upon the Attorney General by the
wrong method, or late service, results in a lack of personal jurisdiction over
the State, unless the State has failed to properly plead jurisdictional defenses
or raise them by pre-answer motion. §11(c) Court of Claims Act; see
Knight v State of New York, 177 Misc 2d 181, 183 (Ct Cl 1998). Failure to
serve a claim at all, however, is a defect that divests the court of subject
matter jurisdiction over the claim, may be raised at any time, and is not
subject to waiver by the State’s inaction.
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).
As noted above, 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, J.). None of the
proofs show that the claim was ever served on the Attorney General. What
claimant has shown instead is that a notice of intention to file a claim was
served upon the Attorney General on February 9, 2005, and that a claim may have
been filed in the Dutchess County Court.
Since claimant has not established that he served the claim upon the Attorney
General as required by Court of Claims Act §11(a), this Court does not have
subject matter jurisdiction over the claim. Claim Number 111537 is hereby
dismissed in its entirety.
Let judgment be entered accordingly.