New York State Court of Claims

New York State Court of Claims

RIVERS v. THE STATE OF NEW YORK, #2009-030-534, Claim No. 115888, Motion No. M-76080


Synopsis


Motion by defendant to dismiss claim granted. Claim served by priority mail, rather than personally, or by certified mail, return receipt requested. Defense raised with particularity in answer

Case Information

UID:
2009-030-534
Claimant(s):
KENNETH RIVERS
1 1.The caption has been amended to reflect the only proper defendant.
Claimant short name:
RIVERS
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :
The caption has been amended to reflect the only proper defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
115888
Motion number(s):
M-76080
Cross-motion number(s):

Judge:
THOMAS H. SCUCCIMARRA
Claimant’s attorney:
KENNETH RIVERS, PRO SE
Defendant’s attorney:
HON. ANDREW M. CUOMO, NEW YORK STATE ATTORNEY GENERAL
BY: ROBERT BARBOSA, ASSISTANT ATTORNEY GENERAL
Third-party defendant’s attorney:

Signature date:
May 21, 2009
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 by Roberto Barbosa, Assistant Attorney General and attached exhibits

3-5 Filed papers: Claim, Answer filed December 19, 2008[2]


No Opposition Filed

Kenneth Rivers alleges in his claim that defendant’s agents denied him access to the courts on June 4, 2008 and July 1, 2008 by driving him “around in circles” forcing his late arrival for a court appearance. A notice of intention to file a claim was apparently served simultaneously with the claim on the Attorney General’s Office by priority mail, rather than personally or by certified mail, return receipt requested, on September 26, 2008. [Affirmation by Robert Barbosa, ¶4, Exhibit A].

In its answer, in addition to general denials, the defendant raises as its first and second affirmative defenses that the Court lacks personal jurisdiction because the notice of intention and the claim were served by the improper method.

Court of Claims Act §11(a) provides that either a notice of intention to file a claim, or 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 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).[3] Failure to serve the claim at all results in a lack of subject matter jurisdiction that is not waiveable

Here, while claimant has served both the notice of intention and the claim itself within ninety (90) days of its apparent accrual, he has not utilized the proper means for service, and the defense has been raised with particularity. Notably, because the notice of intention was not served by the proper means, it did not operate to extend the time within which claimant could then serve his claim. Assuming a cause of action based on negligence, had he properly served the notice of intention, he would be allowed an additional two years from the accrual date in which to serve and file his claim. Court of Claims Act §10(3). If the conduct complained of is founded in an intentional tort, a properly served notice of intention would extend the time within which to serve and file a claim to one (1) year from the accrual date. Court of Claims Act §10(3-b).

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).

Since claimant has not established that he served his claim upon the Attorney General as required, and the defendant has raised the jurisdictional issue in both its answer, and in this unopposed motion, the Court lacks personal jurisdiction, the motion to dismiss is granted, and Claim Number 115888 is hereby dismissed in its entirety.

May 21, 2009
White Plains, New York

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




[2]. Another Answer executed by a different Assistant Attorney General was filed November 3, 2008 under this claim number. The filed Answer that is relevant to this motion is referenced above.
[3]. “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.”