New York State Court of Claims

New York State Court of Claims

CARPENTER v. THE STATE OF NEW YORK, #2009-030-510, Claim No. 115980, Motion Nos. M-75939, CM-76045


Cross motion to dismiss granted. Claim never served on Attorney General. Motion for summary judgment by pro se inmate claimant denied. Related claim number 115989 remains extant, and parties directed to proceed with respect to that claim.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
M-75939, CM-76045
Cross-motion number(s):

Claimant’s attorney:
Defendant’s attorney:
Third-party defendant’s attorney:

Signature date:
February 24, 2009
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers were read and considered on claimant’s motion for summary

judgment and on defendant’s cross-motion to dismiss:

  1. Motion for Summary Judgment by Abdullah Carpenter
  1. Notice of Cross-Motion to Dismiss; Affirmation by Elyse J. Angelico, Assistant Attorney General and attached exhibits
3,5 Filed Papers: Claim, Answer (Claim Number 115980); Claim (Claim Number 115989)

  1. Photocopy of correspondence to Attorney General from Abdullah Carpenter, Claimant, dated December 29, 2008 Abdullah Carpenter alleges in his claim that on or about September 21, 2008 defendant’s agents failed to protect him from an assault by a fellow inmate, causing him physical injury, and additionally resulting in deprivation of his right to be free from cruel and unusual punishment. Claimant apparently did not serve Claim number 115980 on the defendant, but filed it with the Court of Claims on October 20, 2008. [See Affirmation by Elyse J. Angelico, Exhibit B]. On October 22, 2008 claimant filed another, almost identical claim with the Court of Claims that was given file number 115989. [See ibid.].
Although an answer including general denials was served on claimant and then filed in the Clerk’s Office under claim number 115980, the answer filed in the Clerk’s Office was apparently responsive to claim number 115989 - not 115980 - since claim number 115980 was never served on the defendant. [Affirmation by Elyse J. Angelico, ¶4].

Mr. Carpenter wrote to the Attorney General’s Office on December 29, 2008, apparently in response to the cross-motion, indicating that there was some “confusion” and that he apparently intended to proceed on the second claim filed on October 22, 2008 [Claim number 115989] not the first [Claim number 115980], and that the summary judgment motion was intended for 115989. [See Letter to Attorney General dated December 29, 2008 made a part of this file]. The court was given a copy of this letter by the Attorney General’s Office, but it does not appear to have been filed with the Clerk. [See id.].
This motion is addressed first because it is dispositive. 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). 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).[1] 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).

Tasha Hunter-Tabron, employed in the claims bureau of the Office of the Attorney General, responsible for record keeping and searching the system maintained by that office for recording documents served, has listed the various documents received in the Attorney General’s Office. [Affirmation by Elyse J. Angelico, Exhibit B]. With regard to Claim Number 115980, the Attorney General’s Office received a letter from the Court of Claims dated November 7, 2008 acknowledging receipt of a claim in the Court and assignment of claim number 115980, as well as a fee reduction order; a motion for summary judgment from the claimant; and a letter from the Court of Claims acknowledging receipt of the motion and calendering it as M-75939. With regard to Claim Number 115989, the Attorney General’s Office received a claim by regular mail on October 2, 2008; another claim received through the Westchester Supreme and County Courts on October 3, 2008; a claim by certified mail, return receipt requested on October 20, 2008, and a letter from the Court of Claims dated November 10, 2008 acknowledging receipt of a claim filed with the Court on October 22, 2008 and given claim number 115989.

Given the multiple submissions alluded to above, what can be gleaned from this affidavit and the affirmation of counsel attaching it is that this claim - claim number 115980 - was never served on the Attorney General’s Office, that claim number 115989 was served on the Attorney General’s Office (although the means of such service is contested) and the defendant served an answer to Claim Number 115989 that was then filed in the Court of Claims under the earlier, claim number.

Since claimant has not established that he served claim number 115980 upon the Attorney General as required, and the defendant has raised the jurisdictional issue in this timely motion, the Court lacks personal and subject matter jurisdiction, the cross-motion [CM-76045] is granted, and Claim Number 115980 is dismissed in its entirety.
Claimant’s motion for summary judgment [M-75939] is denied as moot. The court does not address the motion as if it were made with regard to Claim Number 115989 given the confusion, even though the correspondence provided by defendant seems to suggest that that is what claimant may have intended.

The Clerk is directed to file the Verified Answer now in this file in the file pertaining to Claim Number 115989, and to correct the claim number.[2] The parties should proceed accordingly with regard to Claim number 115989.

February 24, 2009
White Plains, New York

Judge of the Court of Claims

[1]. “Any objection or defense based upon failure to comply with (i) the time limitations contained in section ten 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].An additional document, entitled by claimant Compelling Discovery Requests, and filed December 22, 2008 with Claim Number 115980, should also be moved and renumbered with the remaining viable claim, that is Claim Number 115989.