6,7 Filed papers: claim, answer
Richard Marino alleges in his claim that defendant’s agents at Green
Haven Correctional Facility either negligently lost or intentionally stole his
personal property sometime between April 18, 2007 and June 13, 2007 when he
discovered that property was missing. This claim was filed in the Office of the
Chief Clerk of the Court of Claims on December 12, 2007. The affidavit of
service indicates only that the claim was mailed but does not indicate to whom
or by what method. In its answer, in addition to general denials, the defendant
asserts seven defenses, including a lack of personal and subject matter
The defendant’s cross-motion is addressed first because it disposes of
the matter. Defendant raises several grounds for dismissal. First, defendant
asserts that the claim was not served on the office of the attorney general
personally or by certified mail, return receipt requested as required, thus the
court does not have personal jurisdiction. Court of Claims Act §11(a).
Second, it is argued that the claim is not properly verified, and is thus
defective and subject to dismissal. Court of Claims Act §11(b). Third,
defendant asserts that the claim was untimely served, because it was served more
than 120 days after its accrual, namely more than 120 days after Mr.
Marino’s personal property administrative remedy was denied. Court of
Claims Act §§10(9) and 11(a).
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). A failure to serve the claim during the
time frame 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
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).
In addition to the equivocal language in the affidavit of service claimant
filed with his claim, wherein he does not state that he served the claim by
anything other than regular mail, and further fails to indicate on whom he
served the claim, defendant has appended a copy of the envelope utilized to
serve the claim upon the Attorney General’s Office, showing that the
document was sent by regular mail, not certified mail, return receipt requested.
Affirmation in Opposition to Claimant’s Motion and in Support
of Cross Motion by Barry Kaufman, Assistant Attorney General, ¶¶ 9 and
10, Exhibit 3]. The claimant has not established that he served the claim upon
the Attorney General as required, and the defendant has raised the
jurisdictional issue in the fourth defense of its answer and in this
Additionally, the claimant has failed to properly verify the claim [see
Court of Claims Act §11(b); Civil Practice Law and Rules §§3020,
3021], rendering it defective, however it does not appear that the defendant
gave notice with due diligence that such claim was defective and would be
treated as a nullity as required, thus this ground for dismissal is not made
out. See Civil Practice Law and Rules §3022.
Finally, Court of Claims Act §10(9) requires that a claim asserting a
cause of action for bailment - such as this one - be served and filed within 120
days of a claimant’s completion of the administrative remedy provided for
in 7 NYCRR Part 1700. Although it is not clear from the claim itself, elsewhere
it appears that claimant did file for his personal property administrative
remedy, and was denied same on or about July 5, 2007. [See Affirmation in
Opposition to Claimant’s Motion and in Support of Cross Motion by Barry
Kaufman, Assistant Attorney General, ¶16, Exhibit 4]. Accordingly, the
claim served and filed herein, on or about December 12, 2007, is untimely.
Defendant raised the defense of lack of personal jurisdiction due to untimely
service in the fifth defense in it answer, thus this ground for dismissal is not
Thus claimant has failed to establish that the Attorney General was served with
a copy of the claim by the means required by Court of Claims Act §11(a),
nor was the claim timely served. Both grounds have been raised in the answer
with sufficient particularity. Defendant’s cross-motion is granted, and
claimant’s motion is denied.
Accordingly, Claim Number 114596 is hereby dismissed for a lack personal