Motion to dismiss granted, no service on AG's office.
|Claimant(s):||JOHN L. PETEREC AND SHERRI PETEREC|
|Claimant short name:||PETEREC|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :||The Court has, sua sponte, amended the caption to reflect the only proper party defendant.|
|Judge:||Terry Jane Ruderman|
|Claimant's attorney:||JOHN L. PETEREC AND SHERRI PETEREC
|Defendant's attorney:||HON. ANDREW M. CUOMO
Attorney General for the State of New York
By: Jeane L. Strickland Smith, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||January 13, 2010|
|See also (multicaptioned case)|
The following papers numbered 1-4 were read and considered by the Court on defendant's motion to dismiss. Oral argument was heard and a traverse hearing was held on January 11, 2010:(2)
Notice of Motion, Attorney's Supporting Affirmation and Exhibits.......................1
"Affirmation" in Opposition and Exhibits...................................................................2
Supplemental Affirmation in Support of Motion and Exhibits................................3
Claim No. 115746 arises out of a set of facts alleged to have occurred on May 28, 2008 and August 8, 2008, when claimants' vehicle was purportedly wrongfully stopped and they were detained by the New York State Police on Route 17 in Monroe, Orange County, New York. The claim was filed-stamped by the Clerk of the Court on August 25, 2008 (Defendant's Ex. A). The claim alleges, inter alia, false arrest, malicious prosecution, harassment, and negligent hiring.(3) Defendant moves to dismiss the claim on the ground that the claim was not served upon defendant as required by the Court of Claims Act.
In support of the motion, defendant submits an affidavit sworn to May 14, 2009, of Tasha Hunter-Tabron, a clerk in the Claims Bureau of the Attorney General which stated that, upon a thorough search of the computer filing system in the Attorney General's Office and other searches, there is no record that this claim was ever served upon the Attorney General's Office (Defendant's Ex. B).
In opposition to defendant's motion to dismiss, claimants submit proof of a mailing sent certified mail, return receipt requested on October 31, 2008 and received by the Office of the Attorney General in New York City on November 3, 2008 (Claimants' Ex. C) and proof of a subsequent mailing sent certified mail, return receipt requested and received by the Attorney General's Office in Poughkeepsie on June 8, 2009 (Claimants' Ex. E).
In its supplemental affirmation, defendant submits copies of Claim Nos. 116034, 116035, 116036 (Defendant's Exs. C-E) which were filed-stamped by the Clerk of the Court on November 3, 2008, the same date of the receipt submitted by claimants which purportedly showed that the Attorney General's Office received service of Claim No. 115746 on November 3, 2008. Defendant argues that the return receipt submitted by claimants refers to Claim Nos. 116034, 116035 and 116036 and not Claim No. 115746, which is the subject of defendant's dismissal motion M-76790. Thus, defendant argues that claimants have not established that Claim No. 115746, which was filed with the Clerk of the Court on August 25, 2008, was ever served upon the Office of the Attorney General. In their reply, claimants argue that on November 3, 2008, the Office of the Attorney General received service of Claim Nos. 115744, 115745, 115746, 116034, 116035 and 116036.
Upon review of the papers submitted on the motion, the Court directed the parties to appear for oral argument and a traverse hearing regarding Claim No. 115746. Despite two adjournments to accommodate claimants, on the third scheduled date, claimant, Sherri Peterec, failed to appear. She did not contact the Court or request an adjournment.(4) Accordingly, defendant moved to dismiss so much of this claim as was asserted by Sherri Peterec due to her failure to appear.
At the hearing, John L. Peterec testified regarding the service of a copy of this claim upon defendant and his proof of mailing, submitted in opposition to defendant's motion, was received into evidence (Exs. 1-3). He testified that to the best of his recollection he believed, although he was not certain, that the mailing he sent to the Office of the Attorney General on October 31, 2008 consisted of copies of six claims, including this claim and Claim Nos. 115745, 115744.
Defendant presented the testimony of Janie Williams, the supervisor for the mail room of the Office of the Attorney General, located at 120 Broadway in New York City. Williams has been employed in this position for 20 years and she testified to her custom and practice in receiving and recording the mail. She recalled that on November 3, 2008, she received an envelope from claimants, sent certified mail, return receipt requested, and the envelope contained three blank pieces of paper. Williams logged this information in the delivery log and a copy of the log book was received into evidence (Defendant's Ex. G). She further testified that she returned the blank pages to the sender with a letter enclosed. John L. Peterec, appearing pro se, conducted a cross-examination of the witness wherein he elicited her certainty regarding the receipt of blank pages. He did not offer anything to contradict Williams' testimony nor did he further testify to the contrary. However, during the cross-examination of Williams, he mentioned that he recalled receiving the letter from Williams and conceded that he could have mistakenly mailed blank pages.
Court of Claims Act §11 mandates that any party seeking to commence an action against the State must file the claim with the Clerk of the Court and serve a copy of the claim upon the Attorney General. The Court of Appeals has held that these statutory requirements must be strictly construed and that both filing and service must occur within the applicable limitations period as a pre-condition of a suit against the State (see Dreger v New York State Thruway Auth., 81 NY2d 721, 724). The statute further provides that service by mail upon the Attorney General must be sent certified, return receipt requested and that "[s]ervice * * * upon the attorney general shall not be complete until the claim * * * is received in the office of the attorney general" (Court of Claims Act §11). Where claimant has failed to meet the statutory prerequisites, the claim must be dismissed for lack of subject matter jurisdiction (see Kolnacki v State of New York, 8 NY3d 277, 281 ["(t)he failure to satisfy any of the (statutory) conditions is a jurisdictional defect"]; Finnerty v New York State Thruway Auth., 75 NY2d 721, 723; Rodriguez v State of New York, 307 AD2d 657; Welch v State of New York, 286 AD2d 496, 497-498).
After the Court's careful consideration of the evidence presented, including listening to the witnesses testify and observing their demeanor as they did so, the Court finds that the sum of the credible evidence established that, while claimants did effectuate a certified mailing, return receipt requested which was received by the Office of the Attorney General on November 3, 2008, the evidence did not establish that that mailing included Claim No. 115746. Additionally, claimants' mailing of Claim No. 115746 to the Office of the Attorney General in Poughkeepsie on June 8, 2009 was untimely as it was served well beyond the 90 days of the asserted accrual dates of May 28, 2008 and August 8, 2008.
Accordingly, defendant's motion to dismiss Claim No. 115746 is GRANTED.
January 13, 2010
White Plains, New York
Terry Jane Ruderman
Judge of the Court of Claims
2. Following the conclusion of the hearing, John L. Peterec submitted a five-page fax to the Court and opposing counsel. While the matter was closed, the Court exercised its discretion, over defendant's objection, and considered this document as additional papers in opposition to defendant's motion.
3. Claim No. 115745, brought by claimant Sherri Peterec, individually, and Claim No. 115744, brought by claimant John L. Peterec, individually, all allege facts arising out of the same incident which is the basis of this claim. The Court also scheduled defendant's motions to dismiss Claim No. 115745 (M-76791) and Claim No. 115744 (M-76792) and a traverse hearing regarding those claims for the same date and time as this motion.
4. Her husband, who appeared regarding his claims, informed the Court that she was ill.