New York State Court of Claims

New York State Court of Claims

MARINO v. THE STATE OF NEW YORK, #2008-030-531, Claim No. 114596, Motion Nos. M-74615, CM-74804


Synopsis


Defendant’s cross-motion to dismiss bailment claim granted; claimant’s motion to strike affirmative defenses denied. Claim served by regular mail more than 120 days after exhaustion of administrative remedies. Both grounds raised in answer. Failure to properly verify claim, while rendering claim subject to dismissal, not ground for dismissal since defendant did not give the required notice with due diligence. CPLR §3022.

Case Information

UID:
2008-030-531
Claimant(s):
RICHARD MARINO
Claimant short name:
MARINO
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
114596
Motion number(s):
M-74615
Cross-motion number(s):
CM-74804
Judge:
THOMAS H. SCUCCIMARRA
Claimant’s attorney:
RICHARD MARINO, PRO SE
Defendant’s attorney:
HON. ANDREW M. CUOMO, NEW YORK STATE ATTORNEY GENERAL
BY: BARRY KAUFMAN, ASSISTANT ATTORNEY GENERAL
Third-party defendant’s attorney:

Signature date:
June 13, 2008
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

The following papers were read and considered on claimant’s motion to strike


defendant’s affirmative defenses and on defendant’s cross-motion to dismiss the claim:

1,2 Notice of Motion to Strike Defendant’s Affirmative Defenses, Affidavit in Support by Richard Marino, Claimant, and attached papers and exhibits

3,4 Notice of Cross-Motion, Affirmation in Opposition to Claimant’s Motion and in Support of Cross-Motion by Barry Kaufman, Assistant Attorney General, and attached exhibits

  1. Plaintiff’s Notice Motion to Dismiss Defendant’s Cross Motion by Richard Marino, Claimant, and attached papers and exhibits[1]
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 jurisdiction.
Cross-Motion to Dismiss
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).[2] 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).

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. [See 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 motion.[3]

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 waived.

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 jurisdiction.[4]

June 13, 2008
White Plains, New York

HON. THOMAS H. SCUCCIMARRA
Judge of the Court of Claims




[1]. This document has been treated as a reply since it essentially is responding to the defendant’s cross- motion. See Civil Practice Law and Rules §§2214 and 2215.
[2]. “Any objection or defense based upon failure to comply with (i) the time limitations contained in section ten of this act, (ii) the manner of service requirements set forth in . . . [11(a)], or (iii) with the verification requirements as set forth in . . . [11(b)] and [Civil Practice Law and Rules 3022] is waived unless raised, with particularity, either by a motion to dismiss made before service of the responsive pleading is required or in the responsive pleading, and if so waived the court shall not dismiss the claim for such failure.”
[3]. The Court notes parenthetically that the claimant’s attempt to cure this defect by serving an “answer” upon the Attorney General’s Office on February 6, 2008 with a copy of the claim attached by certified mail, return receipt requested is unavailing. At that time more than 120 days had passed after exhaustion of claimant’s administrative remedy thus a claim served then - just as the claim served by the improper means slightly earlier - was untimely. Court of Claims Act §10(9).
[4]. The Court notes that it lacks discretionary authority under Court of Claims Act §10(6) to grant permission to serve and file a late bailment claim arising under Court of Claims Act §10(9). See Pristell v State of New York, 40 AD3d 1198 (3d Dept 2007); Blanche v State of New York, 17 AD3d 1069 (4th Dept 2005).