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
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
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
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