The following papers were read and considered by the Court on this Motion:
Defendant’s Notice of Motion, Defendant’s Affirmation in Support
with the annexed Exhibits A-D, Claimant’s Affirmation in Opposition with
annexed Exhibits A-G and the filed Claim.
Defendant, the State of New York, has brought this motion pursuant to CPLR 3211
and Court of Claims Act §§ 8, 10 and 11 seeking an order of dismissal
for failure to properly serve the claim. Defendant also asserts that dismissal
is appropriate because claimant failed to provide proof of service in accordance
with CPLR 306(b) and section 206.5(b) of the Uniform Rules for the Court of
Claims. Defendant argues that as a result of the failure to comply with the
statutory service requirements, the Court lacks jurisdiction over the subject
claim. Claimant opposes the motion.
Defendant sets forth that it first learned of the claim on February 25, 2008
when it received a letter from claimant’s attorney which enclosed a
courtesy copy of the claim and requested an answer to the claim. A second
courtesy copy of the claim was received by defendant on March 26, 2008. This
letter contained a copy of the affidavit of service sworn to December 21, 2007.
Defendant alleges that it was never served with the claim. In support of its
motion to dismiss the claim, defendant attached an affidavit from a clerk in the
New York City Office of the Attorney General who conducted a search of the
computer filing system and found no record that the claim was served upon the
Attorney General (Def Exh C). Defendant also attached an affidavit from
Virginia Conde, the secretary at the Nassau Regional Office of the Attorney
General, who is authorized to accept service on behalf of the Office of the
Attorney General. The affidavit recites the practice of the office when a
claim is received which is to date stamp and log it into a record specifically
maintained to record service of all documents. The affidavit also sets forth
that Ms. Conde conducted a search of all records, including the log book, and
found no record of personal service of the claim (Def Exh D).
Claimant asserts that on December 17, 2007 the subject claim was filed with the
Clerk of the Court pursuant to §8-b of the Court of Claims Act for unjust
conviction and imprisonment. The claim was assigned Claim No. 114606 by the
Chief Clerk of the Court of Claims. Claimant also contends that on December 20,
2007 a copy of the claim was personally served on the Office of the Attorney
General located at 200 Old Country Road in Mineola, New York. Claimant states
that the affidavit of service, sworn to December 21, 2007 and filed on March 3,
2008 did not contain a description of the person served but that a supplemental
affidavit of service filed on May 21, 2008 did contain a description proscribed
by statute. Claimant argues that any such deficiency in the affidavit of
service is not a jurisdictional defect and has been cured by the filing of the
supplemental affidavit of service. A detailed affidavit from Pamela Carlucci,
the office secretary, was provided in which she swore that she personally served
the claim on the Office of the Attorney General on December 20, 2007. She
included descriptions of where she went and to whom she spoke on the day she
served the claim. Claimant also provided an affidavit from one of the partners,
John Serio, who asserts inter alia, that he and his partner, Anthony
Grandinette, drove with their secretary, Pamela Carlucci to the Office of the
Attorney General to serve the claim. Ms. Carlucci exited the vehicle with a
manilla folder containing the claim and returned to the vehicle approximately
ten minutes later with an empty folder (Cl Exh D).
In this case there is conflicting evidence as to whether or not service was
properly made upon the defendant. Therefore, claimant is entitled to a hearing
to establish that defendant was properly served with the claim (Bankers Trust
Co. of Cal. v Tsoukas, 303 AD2d 343 [2d Dept 2003]).
A hearing was held on October 2, 2008 and on October 21, 2008 in which
testimony was taken and credibility assessed regarding the circumstances of the
alleged personal service of the claim. Court of Claims Act §11(a)
provides, in pertinent part, that a copy of the claim shall be served personally
or by certified mail, return receipt requested, upon the attorney general.
Personal service shall be made in the same manner as described in section 307 of
the CPLR. CPLR 307 provides that personal service upon the state shall be made
by delivering the summons to an assistant attorney general at an office of the
attorney general or to the attorney general within the state. CPLR 306(b)
provides, in pertinent part, that when personal service is made, a description
of the person served shall be included in the affidavit of
service. Claimant’s attorneys, the partners in the firm, John Serio and
Anthony Grandinette, both credibly testified at the hearing, that on December
20, 2007 they closed the office mid-day for a Christmas luncheon. They left the
office together with their secretary, Pamela Carlucci, and drove to the Office
of the Attorney General with the intention of serving the claim before
proceeding to the luncheon. Mr. Grandinette testified that he instructed Ms.
Carlucci to go upstairs and serve the Attorney General. Both partners testified
that the Office of the Attorney General was located at 200 Old Country Road
which was only a few blocks from their law office. They dropped Ms. Carlucci
off in the front of the building and then drove around to the back of the
building to await her return. Mr. Serio recalled that Ms. Carlucci exited the
vehicle with a manilla envelope and file. When she returned to the vehicle
approximately ten minutes later, she did not have the envelope with her. Ms.
Carlucci testified that she failed to bring a copy of the claim with her to be
date stamped. Mr. Grandinette stated that he told Ms. Carlucci that they would
file an affidavit of service at a later time. After serving the claim, they
traveled together to the restaurant for the Christmas luncheon.
Ms. Carlucci credibly testified that she has been employed by Mr. Serio and Mr.
Grandinette since 1993 as a legal secretary and that she never personally served
papers prior to this occasion. She stated that the common practice of the firm
was to utilize a process serving company to effectuate service. Ms. Carlucci
testified that on December 20, 2007 she put the Kogut claim in a manilla
envelope but inadvertently forgot to bring a second copy of the claim to the
Office of the Attorney General. She stated that she left her office by car at
approximately 2:30 p.m. with Mr. Serio and Mr. Grandinette. They proceeded
directly to the Office of the Attorney General located on the seventh floor at
200 Old Country Road. She went to the seventh floor where she saw a person
behind a window who she described as being a thin black woman approximately 5'
5" in height. After she informed the first woman at the window that she was
there to serve a claim, another woman came over to the window to accept the
claim. Ms. Carlucci then handed the second woman the envelope. Ms. Carlucci
assumed that the second woman was Virginia Conde since a sign posted on the
window stated that Virginia Conde could accept service on behalf of the Office
of the Attorney General.
Ms. Carlucci credibly testified that she had only been to the Office of the
Attorney General on one previous occasion prior to serving the claim. She also
credibly testified that she had never previously met Virginia Conde, the
secretary at the Office of the Attorney General and otherwise had no interaction
with her. Ms. Carlucci accurately described Ms. Conde as a 45 to 55 year old
white woman with brown hair weighing approximately 170 pounds. This description
correctly described Ms. Virginia Conde who also testified at the hearing. Ms.
Carlucci was also able to accurately describe another woman who worked in the
Office of the Attorney General.
Ms. Carlucci testified that the next day she prepared an affidavit of service
and that sometime thereafter she prepared a second affidavit of service which
contained a description of the person she served the claim upon. Mr. Serio
testified that he failed to file the affidavit of service until February 28,
2008. Mr. Grandinette admitted that he became aware that there was an issue
with the affidavit of service after receiving the instant motion and as a
result, a supplemental affidavit of service was prepared and filed on May 21,
2008 to include a description of the individual served.
On behalf of the defendant, Virginia Conde, Secretary II, testified at the
hearing. She has been employed with the Office of the Attorney General for two
years as a Secretary II. She testified there was a notice posted in the window
that set forth that any Assistant Attorney General or she could accept service
of papers. She was at work on December 20, 2007 and on that day she supervised
two other women, Sandra Cooper, who she described as 5' 11", black, thin and in
her thirties and Allie Dawson, who she described as 5' 6", black, thin and in
her late fifties, who could be at the window.
Ms. Conde testified about the procedure she followed with respect to receiving
service of process. When an individual came to the office to serve papers, they
would be buzzed into the office and brought to her desk, which was twenty-five
feet from the window. She would date stamp the papers, mark them
“PS” for personal service and sign her name. She explained that she
would immediately log the information into the log maintained to track service
of papers. She also explained that if an Assistant Attorney General accepted
service they would date stamp the papers, mark them PS, sign their name and
leave the papers for her only on her keyboard. She would fill out the log when
she saw the papers. If she received a claim, she would prepare a document
transmittal form with the caption and attach a copy of the first page of the
claim. The paperwork would be sent via UPS Overnight Delivery, either that day
or the next day, to the attention of Assistant Attorney General Katherine Brooks
at the New York City office. Ms. Conde was insistent that papers are never
misplaced or misfiled. She also insisted that papers are never left for her in
a place other than her keyboard. However, it is axiomatic that she can not
speak for the actions of other people. She testified that she searched the
service log and other files but she could find no record of the claim. She also
testified that she did not remember receiving the claim. Defendant provided
copies of the “Log for Personal Service and Service by Mail,”
copies of Document Transmittal Forms” and copies of the “UPS
Shipping Record” for the period in question (Def Exhs H, I and J).
The log purports to be a log to track personal service and service by mail but
in actuality it is a device that tracks mail coming into the office from outside
parties, inter-office mail called ‘mystery mail” and case
assignments within the office. Ms. Conde testified that each page usually
indicates a week but lines are purposefully left blank so that as mail comes
into the office there will be room in the log to enter the mail information as
well as case assignments and other information that is received at a later time.
In the columns for type of service, she explained that the term “mystery
mail” predates her employment but that it is used to indicate receipt of
inter-office mail. She also explained that the various question marks that
appear in the type of service column reflect when papers are received by an
Assistant Attorney General and she does not know how service was made. The AAG
assigned and OAG number columns are only used for cases that are assigned to
attorneys in her office and that information is entered at a later date,
sometimes a week later than the entry in the log.
The Court is unable to conclude that the fact that the claim is missing from
these documents is proof that the claim was never received at the Office of the
Attorney General. The log is used for tracking items other than service,
question marks or blank spaces are prevalent and not all the entries are made
contemporaneously. Also if the claim was served and mislaid, it would not
appear on any of these documents. Additionally, the court finds that Ms. Pamela
Carlucci credibly testified that she served the claim on the Office of the
Attorney General on December 20, 2007 and she accurately described Ms. Conde as
the person she served.
The Court finds that the delay in filing the proof of service is a procedural
irregularity and not a jurisdictional defect (Lancaster v Kindor, 98 AD2d
300 [1st Dept 1984]; aff’d 65 NY2d 804 ; Penachio v
Penachio, 27 AD3d 540 [2d Dept 2006]). Additionally, the Court finds that
the omissions in the affidavit of service were not jurisdictional defects and
were cured by Ms. Carlucci’s testimony as well as by the filing of the
supplemental affidavit of service on May 21, 2008 (City & Suburban Fed.
Sav. Bank v Frank, 243 AD2d 670 [2d Dept 1997]; Best v City of New
York, 101 AD2d 847 [2d Dept 1984]).
Therefore, for the foregoing reasons, the Court finds that proper service was
made upon the Office of the Attorney General in this matter. Accordingly,
defendant’s motion is denied.