New York State Court of Claims

New York State Court of Claims

KOGUT v. THE STATE OF NEW YORK, #2009-045-002, Claim No. 114606, Motion No. M-74860


Synopsis



Case Information

UID:
2009-045-002
Claimant(s):
JOHN KOGUT
Claimant short name:
KOGUT
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
114606
Motion number(s):
M-74860
Cross-motion number(s):

Judge:
GINA M. LOPEZ-SUMMA
Claimant’s attorney:
Grandinette & Serio, LLPBy: Anthony M. Grandinette, Esq.
Defendant’s attorney:
Hon. Andrew M. Cuomo, Attorney GeneralBy: Kimberly A. Kinirons, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
January 9, 2009
City:
Hauppauge
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

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 [1985]; 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.


January 9, 2009
Hauppauge, New York

HON. GINA M. LOPEZ-SUMMA
Judge of the Court of Claims