New York State Court of Claims

New York State Court of Claims
BROCKINGTON v. COMMISSIONER OF NYS - DOCCS, # 2021-038-515, Claim No. 135516, Motion No. M-96379

Synopsis

Claim dismissed for lack of service on the Attorney General.

Case information

UID: 2021-038-515
Claimant(s): KENNETH BROCKINGTON
Claimant short name: BROCKINGTON
Footnote (claimant name) :
Defendant(s): COMMISSIONER OF NYS - DOCCS
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 135516
Motion number(s): M-96379
Cross-motion number(s):
Judge: W. BROOKS DeBOW
Claimant's attorney: KENNETH BROCKINGTON, Pro se
Defendant's attorney: LETITIA JAMES, Attorney General
of the State of New York
By: Michael T. Krenrich, Assistant Attorney General
Third-party defendant's attorney:
Signature date: March 8, 2021
City: Saratoga Springs
Comments:
Official citation:
Appellate results:
See also (multicaptioned case)

Decision

This claim was filed with the Clerk of the Court of Claims on October 26, 2020, and it alleges that claimant was wrongfully confined at Gowanda Correctional Facility (CF) between September 27, 2018 and October 15, 2018 due to an erroneous calculation of his release date. By Order to Show Cause, filed on January 25, 2021, this Court required claimant to demonstrate why this claim should not be dismissed on jurisdictional grounds for lack of service of the claim upon the Attorney General, as required by Court of Claims Act 11 (a). Claimant and the Office of the Attorney General (OAG) have both responded to the Order to Show Cause.

Court of Claims Act 11 (a) (i) requires service of the claim upon the Attorney General. It is well established that the filing and service requirements of the Court of Claims Act are jurisdictional in nature, and that the failure to timely serve the claim upon the Attorney General deprives the Court of subject matter jurisdiction (see Finnerty v New York State Thruway Auth., 75 NY2d 721, 722-723 [1989]; Matter of Dreger v New York State Thruway Auth., 177 AD2d 762, 762-763 [3d Dept 1991], affd 81 NY2d 721 [1992]; Locantore v State of New York, UID No. 2009-038-517 [Ct Cl, DeBow, J., Feb. 11, 2009]).

This claim, which was filed on October 26, 2020, is identical to claim number 134108, another claim that claimant filed that was dismissed by this Court in a Decision and Order dated December 22, 2020 for lack jurisdiction because it was served by ordinary mail and was untimely (see Brockington v Commissioner of NYS - DOCCS, UID No. 2020-038-588 [Ct Cl, DeBow, J., Dec. 22, 2020]).(1) Although the affidavit of service that was filed with the instant claim averred that the claim was served on the Attorney General, it was defective inasmuch as it did not state the date that the claim was served (see Affidavit of Service of Kenneth Brockington, sworn to October 21, 2020),(2) and defendant did not answer the claim, prompting the Court's issuance of this Order to Show Cause. The affirmation of the Assistant Attorney General (AAG) in response to the Order to Show Cause affirms "that upon information and belief, the defendant, the State of New York, did not receive service of [this claim]" (Krenrich Affirmation, 2). In an undated, unsworn and unsigned submission, claimant submits a photocopy of certified mail, return receipt requested (CMRRR) receipt that demonstrates that some piece of certified mail was received by Anthony J. Annucci, the Commissioner of the Department of Corrections and Community Supervision (DOCCS), on November 12, 2020, with claimant stating: "You requested this paper proof and I all so [sic] sent to the Office of the Attorney General: Letitia James all copys [sic] of this claims [sic]" (Undated, Unsigned and Unsworn Submission, filed Feb. 3, 2021[emphasis in original]).(3)

Here, defendant's submission demonstrates prima facie that the claim was not served on the Attorney General as required by Court of Claims Act 11 (a) (i), and claimant has failed to prove otherwise. Claimant submits only a CMRRR receipt that demonstrates that some piece of certified mail was received by DOCCS Commissioner Annucci, and notably does not submit a CMRRR receipt demonstrating that the Attorney General had received any mail via CMRRR. Moreover, although claimant apparently asserts that he sent a copy of the claim to the Attorney General, his submission is unsigned and unsworn and thus lacks evidentiary value.

Accordingly, inasmuch as the evidence before the Court establishes that the claim was not served on the Attorney General, as required by Court of Claims Act 11 (a) (i), it is

ORDERED, that upon motion number M-96379, claim number 135516 is DISMISSED.

March 8, 2021

Saratoga Springs, New York

W. BROOKS DeBOW

Judge of the Court of Claims

Papers considered:

1. Claim number 135516, filed October 26, 2020;

2. Affidavit of Service of Kenneth Brockington, sworn to October 21, 2020;

3. Affidavit of Service of Kenneth Brockington, sworn to November 26, 2019;

4. Order to Show Cause (M-96379), filed January 25, 2021;

5. Undated, unsigned and unsworn submission of Kenneth Brockington, filed February 3, 2021;

6. Affirmation of Michael T. Krenrich, AAG, in Response to Order to Show Cause, dated

February 4, 2021, with Exhibits A-E;

7. Claim number 134108, filed December 9, 2019, with Affidavit of Service of Kenneth

Brockington, sworn to November 26, 2019.


1. The instant claim appears to be a photocopy of claim number 134108, as even the verification was identical, with both claims having been verified on November 25, 2019 by the same notary.

2. Also appended to the claim is a copy of the affidavit of service that was filed with Claim number 134108 that averred that that claim was served on December 6, 2019 (see Affidavit of Service, sworn to November 26, 2019).

3. Also appended to claimant's submission is a motion for summary judgment that claimant filed with the Court on claim number 134108 that the Court denied because he failed to submit a copy of the pleadings with his motion papers (see Brockington v Commissioner of NYS - DOCCS, UID No. 2020-038-562 [Ct Cl, DeBow, J., Oct. 15, 2020]). The Court did not consider claimant's summary judgment motion papers in rendering its decision in this matter.