New York State Court of Claims

New York State Court of Claims

SHEPHERD v. THE STATE OF NEW YORK, #2008-030-583, Claim No. 115951, Motion No. M-75828


Synopsis


Claim alleging inadequate medical care at correctional facility dismissed on pre-answer motion. Claim served by regular mail, rather than personally, or by certified mail, return receipt requested.

Case Information

UID:
2008-030-583
Claimant(s):
EON SHEPHERD
Claimant short name:
SHEPHERD
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
115951
Motion number(s):
M-75828
Cross-motion number(s):

Judge:
THOMAS H. SCUCCIMARRA
Claimant’s attorney:
EON SHEPHERD
Defendant’s attorney:
HON. ANDREW M. CUOMO, NEW YORK STATE ATTORNEY GENERAL
BY: JEANE L. STRICKLAND SMITH, 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 defendant’s motion to dismiss:

1,2 Notice of Motion; Affirmation in Support of Motion to Dismiss by Jeane L. Strickland Smith, Assistant Attorney General and attached exhibit

  1. Claimant’s Affirmation of Opposition to Defendant’s Motion to Dismiss by Eon Shepherd, Claimant and attachments
  1. Filed papers: Claim
Eon Shepherd alleges in his claim - filed in the Court of Claims on October 14, 2008 - that defendant’s agents, primarily at Green Haven Correctional Facility (Green Haven), failed to provide him with adequate medical care after surgery. More specifically, he alleges that he underwent surgery to his right knee at Mt. Vernon Hospital on February 4, 2008. He was discharged to Green Haven’s facility hospital on February 6, 2008 with a leg mobilizer. Thereafter, from the date of his discharge until on or about August 15, 2008 he alleges he was continually housed on the second floor of the correctional facility despite limitations on his ability to walk. He further alleges medical personnel failed to prescribe appropriate pain medication and that his prescribed knee brace and boots were confiscated when he was placed in the Special Housing Unit. At Upstate Correctional Facility, where he was transferred on August 15, 2008, he avers he did not timely receive asthma medications, and has not received appropriate treatment for migraine headaches and lower back pain.

The affidavit of service appended to his filed claim indicates that Mr. Shepherd mailed a copy of the claim to the office of the attorney general on September 23, 2008.

The statute requires that “[t]he claim shall be filed with the clerk of the court;. . . a copy shall be served upon the attorney general within the times hereinbefore provided [see Court of Claims Act §10] for filing with the clerk of the court either personally or by certified mail, return receipt requested, . . .” and 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 as required results in a lack of 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).[1]

Here, the defendant indicates that the claim was received by regular mail on October 15, 2008, and attaches a photocopy of the envelope in which the claim was received demonstrating such service by regular mail only. [Affirmation in Support of Motion to Dismiss, ¶4, Exhibit A]. Defendant moves to dismiss the claim based upon claimant’s failure to serve it upon the attorney general’s office either personally, or by certified mail, return receipt requested, as required. 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).

Mr. Shepherd has not been able to establish that he served the claim[2] upon the attorney general as required, and the defendant has raised the jurisdictional issue in a timely motion. Thus claimant has failed to establish, by a fair preponderance of the credible evidence, that the attorney general was served with a copy of the claim as required by Court of Claims Act §11(a) .

Accordingly, Claim Number 115951 is hereby dismissed for a lack of personal jurisdiction.


December 11, 2008
White Plains, New York

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




[1].
Any objection or defense based upon failure to comply with (i) the time limitations contained in section 10 of this act, (ii) the manner of service requirements set forth in . . . [11(a)], or (iii) 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.”
[2]. The court does not address whether the notices of intention claimant avows he timely served by certified mail, return receipt requested upon the defendant, are proper and thus served one of their multiple functions of affording a claimant an additional period in which to serve and file his claim. Claimant appears to be arguing that having served the notices of intention by certified mail, he was not required to then serve his claim by certified mail. [see Claimant’s Affirmation of Opposition to Defendant’s Motion to Dismiss,¶8]. That is not the law at this time.