New York State Court of Claims

New York State Court of Claims

THATCHER v. WESTCHESTER COUNTY SUPREME COURT


STATE OF NEW YORK, #2008-030-582, Claim No. 115503, Motion No. M-75717


Synopsis


Disposition of Order to Show cause by Court. Claimant has failed to comply with the service requirements of Court of Claims Act §§10 and 11 and, has additionally brought a claim over which the Court does not have subject matter jurisdiction. Claim seeks remission of a bail forfeiture entered after a bench warrant was issued by the Westchester County Supreme Court in connection with his failure to appear for sentencing in a criminal matter. The claim was served on the attorney general’s office by regular mail. Even assuming the court had jurisdiction over the subject matter of this claim, and that the claim was served by the appropriate means, it is untimely.

Case Information

UID:
2008-030-582
Claimant(s):
JOAQUIN THATCHER
Claimant short name:
THATCHER
Footnote (claimant name) :

Defendant(s):
WESTCHESTER COUNTY SUPREME COURTSTATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
115503
Motion number(s):
M-75717
Cross-motion number(s):

Judge:
THOMAS H. SCUCCIMARRA
Claimant’s attorney:
JOAQUIN THATCHER, PRO SE
Defendant’s attorney:
HON. ANDREW M. CUOMO, NEW YORK STATE ATTORNEY GENERAL
BY: ELYSE J. ANGELICO, ASSISTANT ATTORNEY GENERAL
Third-party defendant’s attorney:

Signature date:
December 11, 2008
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

The following papers were read and considered on the disposition of the Court’s Order to


Show Cause marked returnable December 3, 2008:

  1. Order to Show Cause dated October 21, 2008
  1. Letter from Joaquin Thatcher, claimant dated October 30, 2008
  1. Affirmation in Response to Order to Show Cause by Elyse J. Angelico, Assistant Attorney General and attached exhibits
  1. Filed Papers: Claim[1]
In his claim, filed in the office of the Chief Clerk on July 9, 2008, Joaquin Thatcher seeks remission of a $3,280.00 bail forfeiture entered after a bench warrant was issued on July 11, 2007 by the Westchester County Supreme Court in connection with his failure to appear for sentencing in a criminal matter. The claim was served on the attorney general’s office by regular mail on or about May 16, 2008. [Affirmation in Response to Order to Show Cause, ¶ 2].

Court of Claims Act §11(a) provides that “. . . a copy [of the claim] shall be served personally or by certified mail, return receipt requested, upon the attorney general . . .” within the time prescribed in Court of Claims Act §10; and service is complete when it is received in the attorney general’s office. Court of Claims Act §11(a)(i). 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).

A claim asserting negligent forfeiture of bail, would accrue upon such forfeiture [see Lopez v State of New York, 176 Misc 11 (Ct Cl 1941)], here July 13, 2007 when his bail was revoked. Thus even assuming the court had jurisdiction over the subject matter of this claim, and that the claim was served by the appropriate means, it is untimely[2], since it was served more than ninety (90) days after its accrual. Court of Claims Act §10(3).[3]

It is axiomatic, however, that the Court of Claims is a Court of limited jurisdiction, that may only exercise jurisdiction in cases or controversies for money damages in which the State is a proper party. Court of Claims Act §9. In that connection, Criminal Procedure Law §540.30[4] provides the exclusive remedy for applying for remission of bail. Such application is to be made (generally) in the court in which such forfeiture was directed - here the Westchester County Supreme Court - within one (1) year of such forfeiture. [See id.].

The original affidavit of service filed with the claim does not indicate how the defendant was served with a copy of the claim. According to the defendant, the attorney general’s office was served only by regular mail, not personally or by certified mail, return receipt requested.

Additionally, the claim herein is not one over which this court has subject matter jurisdiction as noted. See generally Court of Claims Act § 9.

Based on the foregoing, the Court is satisfied that the claimant has failed to comply with the service requirements of Court of Claims Act §§10 and 11 and, has additionally brought a claim over which the Court does not have subject matter jurisdiction, accordingly, Claim Number 115503 is hereby dismissed in its entirety.

December 11, 2008
White Plains, New York

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




[1]. While the Assistant Attorney General indicates that she filed an answer in the office of the Chief Clerk of the Court of Claims on or about June 19, 2008, and served same on the claimant at the same time, the answer does not appear to have been actually recorded as filed in the clerk’s office. [Affirmation in Response to Order to Show Cause, Exhibit C].
[2]. Claimant writes in his claim that a notice of intention to file a claim was served on the attorney general on November 17, 2007, and that a copy of it is attached. No copy of a notice of intention is attached to the filed claim. Additionally, the defendant indicates that it was not served with a notice of intention to file a claim. [Affirmation in Response to Order to Show Cause,¶12].
[3]. Alternatively, if it is not negligence that is claimed, the claim has not been served and filed within six (6) months of accrual. See Court of Claims Act §10(4).

[4]. “1. After the forfeiture of a bail bond or cash bail, as provided in section 540.10, an application for remission of such forfeiture may be made to a court as follows:

(a) If the forfeiture has been ordered by a superior court, the application must be made in such court;

(b) If the forfeiture has been ordered by a local criminal court, the application must be made to a superior court in the county, except that if the local criminal court which ordered the forfeiture was a district court, the application may alternatively be made to that district court.
2. The application must be made within one year after the forfeiture of the bail is declared upon at least five days notice to the district attorney and service of copies of the affidavits and papers upon which the application is founded. The court may grant the application and remit the forfeiture or any part thereof, upon such terms as are just. The application may be granted only upon payment of the costs and expenses incurred in the proceedings for the enforcement of the forfeiture.”