New York State Court of Claims

New York State Court of Claims

VELEZ v. THE STATE OF NEW YORK, #2008-030-016, Claim No. 111537


Defendant’s motion to dismiss for lack of subject matter jurisdiction granted although trial on inmate claimant’s wrongful confinement, medical malpractice and bailment commenced. Claim never served on Attorney General

Case Information

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:
Third-party defendant’s attorney:

Signature date:
June 6, 2008
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


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.[1]

Let judgment be entered accordingly.

June 6, 2008
White Plains, New York

Judge of the Court of Claims

[1]. The Court notes that it is too late to seek relief pursuant to Court of Claims Act §§10(6) and (8) with regard to causes of action for wrongful confinement, medical malpractice and the like, presuming a last date of accrual in February, 2005; and that such relief would not be available with regard to any bailment cause of action in any event. see Court of Claims Act §10(9).