Opinion
# 2011-048-023 Claim No. 114435 Motion # 2011-048-023 Claim No. M-80068 # 2011-048-023 Claim No. M-80458
12-07-2011
LEE v. THE STATE OF NEW YORK
Synopsis
The Court dismissed the Claim, concluding that it lacked subject matter jurisdiction over the matter based on Claimant's failure comply with the service requirements of Court of Claims Act § 11 (a) (i). Case information
UID: 2011-048-023 Claimant(s): RALPH LEE Claimant short name: LEE Footnote (claimant name) : Defendant(s): THE STATE OF NEW YORK Footnote (defendant name) : Third-party claimant(s): Third-party defendant(s): Claim number(s): 114435 Motion number(s): M-80068, M-80458 Cross-motion number(s): Judge: GLEN T. BRUENING Claimant's attorney: RALPH LEE, Pro Se HON. ERIC T. SCHNEIDERMAN Attorney General of the State of New York Defendant's attorney: By: Joan Matalavage, Esq. Assistant Attorney General Third-party defendant's attorney: Signature date: December 7, 2011 City: Albany Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
Claimant Ralph Lee seeks damages for personal injuries he sustained on June 4, 2007 while an inmate at the Eastern Correctional Facility in Napanoch, Ulster County, under the supervision of the Department of Correctional Services ("DOCS").
DOCS is now known as the Department of Corrections and Community Supervision (DOCCS). Inasmuch as the Claim relates to acts that occurred prior to the name change, this Decision will refer to the Executive Agency by its former name.
On that date, Claimant alleges that, due to Defendant's negligence, he sustained a crush injury to his third finger on his left hand while using defective equipment in the facility's metal shop. Defendant brings two motions seeking dismissal of the Claim based on Claimant's failure to comply with the filing and service requirements set forth in the Court of Claims Act §§ 10 and 11.
On July 13, 2007, a Notice of Intention to File a Claim was served on the Attorney General (see Correspondence of Joan Matalavage, Esq., dated August 12, 2011). On October 31, 2007, Claimant filed with the Clerk of the Court a "Claim for Negligence" which was assigned Claim No. 114435. Attached to the "Claim for Negligence" was an "Affidavit of Service" dated October 29, 2007 purporting to serve, among other documents, the Claim upon the Attorney General by depositing it "into the mailbox at the Eastern N.Y. Correctional Facility P.O. Box 338, Napanoch, New York 12458-0388" (Claim filed October 31, 2007 with attached Affidavit of Service). The Affidavit of Service contains typed language in both the heading and body that would have attested to service upon the Attorney General by certified mail, return receipt requested. In both places, however, this language was lined out with Claimant's notation "no funds available" and "n/f/a," respectively. By Notice of Motion filed July 7, 2011 (M-80068), Defendant moved pursuant to CPLR § 3211 (a) (2) and (8) seeking an order dismissing the Claim based on the lack of subject matter and personal jurisdiction due to Claimant's failure to serve the Claim on the Attorney General.
On August 24, 2011, during the pendency of Defendant's motion, Claimant attempted to serve his "Claim for Negligence," bearing Claim No. 114435 and dated October 29, 2007 on the Attorney General. Defendant served and filed a new Motion (M-80458) pursuant to CPLR § 3211 (a) (2), (5), (7) and (8) seeking an order dismissing the Claim based on the lack of subject matter and personal jurisdiction due to Claimant's failure to timely and properly serve the Claim on the Attorney General. Defendant also argues that the "Claim for Negligence" served August 24, 2011, fails to satisfy the pleading requirements of Court of Claims Act § 11 (b).Claimant opposes both of Defendant's motions.
The Court notes that the second "Claim for Negligence" purportedly served on the Attorney General on August 24, 2011 is incomplete, consisting only of two pages, one with four paragraphs that allege the nature of the parties and that Defendant was the owner of the Metal Shop II at the Eastern Correctional Facility, and the second containing a Wherefore clause.
Lawsuits for money damages brought against the State in the Court of Claims are allowed because the State waived its sovereign immunity conditioned upon Claimant's compliance with specific statutory requirements that are set forth in Article II of the Court of Claims Act (see Court of Claims Act §§ 8 and 9 [2]; Lepkowski v State of New York, 1 NY3d 201, 206 [2003]). These statutory preconditions to such Claims, including the filing and service requirements mandated by Court of Claims Act § 11, are jurisdictional and must be strictly construed (see Alston v State of New York, 97 NY2d 159, 163-164 [2001]; Finnerty v New York State Thruway Auth., 75 NY2d 721, 722-723 [1989]).
Court of Claims Act § 11 (a) (i) mandates that a copy of the Claim be served personally or by certified mail, return receipt requested, upon the Attorney General within the applicable time period provided in Section 10 of the Court of Claims Act. "Failure to comply with the statutory filing and service requirements [set forth in the Court of Claims Act] deprives the Court of Claims of subject matter jurisdiction and compels dismissal of the claim" (Maude V. v New York State Off. of Children & Family Servs., 82 AD3d 1468, 1469 [3d Dept 2011]; see Filozof v State of New York, 45 AD3d 1405, 1406 [4th Dept 2007]). However, while an objection to the manner of service is waived unless specifically raised in Defendant's Motion to Dismiss made prior to the Answer, or in the Answer itself (see Court of Claims Act § 11 [c]; Turley v State of New York, 279 AD2d 819, 819 [3d Dept 2001], lv denied 96 NY2d 708 [2001]), an objection to lack of service is not waived (see Finnerty v New York State Thruway Auth., 75 NY2d at 723; Johnson v New York State, 71 AD3d 1355, 1355 [3d Dept 2010], lv denied 15 NY3d 703 [2010]).
In support of its first Motion to Dismiss for lack of service, Defendant submits the Affidavit of Janet Barringer, senior clerk in the Albany Office of the Attorney General, who, after conducting a thorough search of the records of the Attorney General's Claims Bureau, attests that Defendant's records show that no Claim in this case was served on the Attorney General as of July 6, 2011 (see Affidavit of Janet Barringer, sworn to on July 7, 2011). In opposition to Defendant's motion, Claimant has submitted several letters arguing that he served the Claim on the Attorney General. In letters dated July 28, 2011 and August 2, 2011, Claimant mentions and submits a copy of a receipt for certified mail, return receipt requested. However, this receipt shows that it was mailed on July 10, 2007 and received by the Attorney General on July 13, 2007. This date corresponds roughly with the date he served his Notice of Intention to File a Claim (see Claim filed October 31, 2007). Correspondence from Defendant's attorney acknowledges that service of the Notice of Intention to File a Claim was completed on the Attorney General on July 13, 2007 (see Correspondence from Joan Matalavage, Esq. dated August 12, 2011). By correspondence dated August 19, 2011, Claimant asserts that the Claim for Negligence was "put in a mail box October 29, 2007" and sent to the Court and the Attorney General's Office and attaches an Affidavit of Service indicating that the Claim was served on the Attorney General on October 29, 2007 by depositing the same into the mailbox at Eastern Correctional Facility. In addition, while Defendant does not object to Claimant's purported "Affidavit of Service," which is in actuality an unsworn declaration made "under penalty of perjury" pursuant to 28 USC 1746, it is worth noting that unlike the Federal court procedure, New York State permits the use of an unsworn affirmation by a limited number of professionals (see CPLR § 2106; Doumanis v Conzo, 265 AD2d 296, 296 [2d Dept 1999]; see also Discovision Assoc. v Fuji Photo Film Co., Ltd., 71 AD3d 488, 489 [1st Dept 2010]). Claimant does not purport to be one of those professionals.
In its second Motion to Dismiss, Defendant asserts that the Claim was served on the Attorney General by regular mail, thus failing to comply with the service requirements of Court of Claims Act §11 (a) (i). Attached to Defendant's motion papers is a copy of the "Affidavit of Service" dated October 29, 2007 which purports to demonstrate service of the Claim upon the Attorney General by depositing the Claim "into the mailbox at the Eastern N.Y. Correctional Facility P.O. Box 338, Napanoch, New York 12458-0388. And forwarded via the United States Postal Service on the 29 of October 2007" (see Affirmation of Joan Matalavage, Esq., dated September 30, 2011, Exhibit A). Defendant also submits a copy of the mailing envelope of the Claim purportedly served in August 2011, which fails to indicate that its contents were mailed via certified mail, return receipt requested (see Affirmation of Joan Matalavage, Esq., dated September 30, 2011, Exhibit A). Claimant does not dispute Defendant's contentions. Indeed, Claimant has not filed proof of service for his August 2011 mailing of his Claim. Moreover, Claimant asserts that he asked "others in the law library. How to proceed . . . . [i]n the law library I raised a question who do I send these papers to [.] I only did what I was instructed to do. Instructed by them at that time for a filing of a claim" (see Claimant's Correspondence dated October 12, 2011).
In light of the proof before it, the Court concludes that Claimant did not serve his Claim upon the Attorney General in October 2007 as required by Court of Claims Act § 11 (a) (i) depriving the Court of jurisdiction. Nevertheless, even if he had, it was not served in the manner required by the Act, also depriving the Court of jurisdiction. The Court further concludes that the attempted service of the Claim on August 24, 2011 on the Attorney General was by first-class mail, and thereby failed to comply with Court of Claims Act § 11 (a) (i). This deprived the Court of subject matter jurisdiction (see Alston v State of New York, 97 NY2d at 163; Finnerty v New York State Thruway Auth., 75 NY2d at 723). Accordingly, Defendant's Motions No. M-80458 and M-80068 are granted and the Claim is dismissed.
December 7, 2011
Albany, New York
GLEN T. BRUENING
Judge of the Court of Claims
The following papers were read and considered by the Court:
Claim filed October 31, 2007;
Defendant's Notice of Motion filed July 7, 2011 and Affirmation of Joan Matalavage, Esq., dated July 7, 2011, with attached Exhibit 1 (consisting of the Affidavit of Janet Barringer, sworn to on July 7, 2011, with Exhibit A);
Claimant's correspondence dated July 20, 2011;
Claimant's correspondence dated July 28, 2011;
Claimant's correspondence dated August 2, 2011, with attachment consisting of one page;
Correspondence from Joan Matalavage, Esq. dated August 12, 2011, with attachments consisting of five pages;
Claimant's correspondence dated August 19, 2011, with attachments consisting of four pages;
Defendant's Notice of Motion, filed September 30, 2011 and Affirmation of Joan Matalavage, Esq. dated September 30, 2011, with attached Exhibits A and B;
Affidavit of Janet Barringer, sworn to on July 7, 2011, with Exhibit A;
Claimant's correspondence dated October 12, 2011.