Peter Hall, an inmate proceeding pro se, alleges in his claim that
defendant’s agents at Sing Sing Correctional Facility (Sing Sing)
assaulted him and violated his United States and New York State Constitutional
rights when they cut his hair between February 1 and May 10, 2006. Trial of the
matter was to be held at Sing Sing on May 15, 2009.
On that date, the defendant moved to dismiss the claim premised upon
claimant’s alleged failure to serve the claim on the Office of the
Attorney General. In that connection, the Assistant Attorney General presented
an affidavit by Tasha Hunter-Tabron, a clerk in the Claims Bureau in the New
York City Office of the Attorney General, charged with keeping track of
documents served in litigation in the Court of Claims among other duties.
[See Exhibit A]. From her review, it appears that no claim or notice of
intention to file a claim was ever served upon the Defendant. Indeed, the only
record of this claim she found was a copy of a letter dated February 8, 2007
sent to the claimant by the Office of the Chief Clerk of the Court of Claims
acknowledging the filing of this claim on January 31, 2007 in the Clerk’s
Office, providing the claim number, and enclosing a fee reduction order.
From the Court’s review of the Clerk’s file, an affidavit of
service dated November 25, 2006, that is signed by claimant but not notarized,
was attached to the filed claim. It does not indicate who the claim was served
upon, but states that such service was by certified mail, return receipt
requested. The Court’s file does not contain an answer.
Claimant said that he recalled serving the claim by certified mail, return
receipt requested, but that he did not have any documents with him to establish
such service. Accordingly, he was granted forty-five (45) days from the trial
date to submit proof that the claim had been served as required.
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). With regard to the causes of action
asserted in the filed claim, either a claim, or a notice of intention to file a
claim, should have been served on the Attorney General’s Office within
ninety (90) days of its accrual. See Court of Claims Act §10(3). A failure
to serve the claim during the time period 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).
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).
More than forty-five (45) days from the date of trial have passed, and
claimant has failed to submit proof of service.
As noted, no answer by the Attorney General was served or filed. This has been
found to be “reflective of the failure to have served the claim.”
[See Dunn v State of New York, Claim No. 98551, Motion Nos.
M-62308, M-62310, CM-62324, UID # 2000-005-556 (Corbett, J., September 20,
Based on the foregoing, since claimant has not established that he served the
claim upon the Attorney General as required by Court of Claims Act §11(a),
this Court does not have subject matter jurisdiction over the claim.
Accordingly, defendant’s motion to dismiss, upon which decision had been
reserved at trial, is hereby granted, and Claim Number 113282 is dismissed.