Pedro Rodriguez, an inmate proceeding pro se, alleges in his claim that
defendant’s agents at Sing Sing Correctional Facility (Sing Sing) failed
to provide him with adequate post-operative treatment and medical care following
knee surgery on or about July 29, 2005 causing him injury. Trial of the matter
was to be held at Sing Sing on August 22, 2008.
On that date, the defendant moved to dismiss the claim premised upon
claimant’s alleged failure to serve the claim on the Office of the
Attorney General. In that connection, the Assistant Attorney General presented
an affidavit by Tasha Hunter-Tabron, a clerk in the Claims Bureau in the New
York City Office of the Attorney General, charged with keeping track of
documents served in litigation in the Court of Claims among other duties.
[See Exhibit A and attached documents]. From her review, it appears that
a Notice of Intention to file a claim was served on the Attorney General’s
Office on October 14, 2005 by regular mail. [Ibid. ¶4]. On October
27, 2005 a document entitled Notice of Intent to file Claim was forwarded from
the Westchester County Supreme Court to the Attorney General’s Office,
apparently having been filed in that court. [Ibid.].
Thereafter, the defendant received a copy of a letter sent by the Office of the
Chief Clerk of the Court of Claims indicating that a Notice of Intention to file
a claim erroneously filed
in the Clerk’s
Office was returned to the claimant on November 4, 2005. [Ibid.
January 4, 2006 the Attorney General’s Office received a motion seeking
permission to file a late claim by certified mail, return receipt requested, but
the motion was never calendared (presumably because it was never filed with the
]. Finally, on November 17, 2006 the Attorney
General’s Office received a copy of a letter to claimant from the
Clerk’s Office acknowledging the filing of this claim on November 2, 2006
in the Clerk’s Office, and providing the claim number.
In response, claimant offered a letter he received from the Attorney
General’s Office dated August 7, 2006 apparently responding to Mr.
Rodriguez’ correspondence to that office, with an attached receipt showing
payment of certified mail postage, and two date stamps: one by the United States
Postal Service dated December 29, 2005 and one by the Sing Sing correspondence
department dated January 6, 2006, and indicating that the addressee was the
Attorney General’s Office in Albany, New York. [Exhibit 1]. No green post
card showing what happened when and if the document was sent by the USPS was
.]. The time frame on the portion of the receipt that was
submitted would appear to show that it refers to the motion papers claimant
served on the Attorney General’s Office in January
.]. To add to the confusion,
the August 7, 2006 letter the Attorney General’s Office wrote to claimant
advises that the only document they had in their file was a motion seeking
permission to file a late claim that had been served on the Attorney
General’s Office by certified mail on “October 24, 2005,” a
date that does not appear to reference any of the foregoing. [Ibid.
More significantly, Mr. Rodriguez quite candidly testified that he
“probably” served the claim regular mail. Claimant was unable to
show by documentary proof whether he did indeed serve the claim nor could he
recall what method of service, if any, he had used.
Court of Claims Act §11(a) provides that the claim must be served
personally or by certified mail, return receipt requested, upon the attorney
general within the times prescribed in Court of Claims Act §10; and that
service is complete when it is received in the Attorney General’s Office.
Court of Claims Act §11(a)(i). Court of Claims Act §10(3) requires
that a claim alleging negligence or medical malpractice such as the one filed
here be served and filed within ninety (90) days of its accrual. The statute
also requires that to be effective any notice of intention to file a claim must
be served within the time periods provided for service of a claim, by the same
methods, here, within ninety (90) days of its accrual. A failure to serve the
claim during the time period and in the manner required results in a lack of
personal jurisdiction, unless the State has failed to properly plead
jurisdictional defenses or raise them by motion. In that case, the defense is
waived. Court of Claims Act §11(c).
Failure to serve the claim at all results in a lack of subject matter
jurisdiction that is not waiveable.
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).
Given a date of accrual of July 29, 2005 claimant was required to serve either
his claim or a notice of intention to file a claim on the Attorney
General’s Office on or before October 27, 2005 by the proper means. Court
of Claims Act §10(3). A notice of intention acts to extend the period
within which a claim must be served and filed, provided it has been properly
served and contains the required information. If Mr. Rodriguez had served, for
example, a notice of intention to file a claim by certified mail, return receipt
requested on or before October 27, 2005, claimant would have then been allowed
to serve his claim by the proper means on or before July 29, 2007, and to file
it with the Clerk within the same time frame.
In reviewing the papers filed in the Office of the Chief Clerk of the Court of
Claims, the Court notes that the claim herein was filed on November 2, 2006, and
contains an affidavit of service indicating that something was personally served
on an unspecified date on an Assistant Attorney General in the White Plains
Office by the claimant himself. [See Claim No. 112974]. The notary stamp
for the affidavit of service indicates that the affidavit was sworn to on
October 27, 2006. [Id.]. No answer was filed in the Clerk’s
Based on the foregoing, it appears that the claim was never served by claimant
on the Office of the Attorney General, nor was a timely notice of intention to
file a claim served on that office by the proper means. As noted, 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, Motion Nos. M-62308, M-62310,
CM-62324 (Corbett, Jr., J., September 20, 2000)].
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. Accordingly, defendant’s
motion to dismiss, upon which decision had been reserved, is hereby granted, and
Claim Number 112974 is dismissed.
Let judgment be entered accordingly.