Opinion
# 2019-038-604 Claim No. 132948 Motion No. M-94337
11-06-2019
JOHN W. MILNER v. THE STATE OF NEW YORK, GOVERNOR ANDREW CUOMO, ATTORNEY GENERAL LETITIA JAMES, DETECTIVE JOHN FLOOD, 2 UNNAMED DETECTIVES, AND SOMERS POLICE CHIEF MICHAEL DRISCOLL
JOHN W. MILNER, Pro se LETITIA JAMES, Attorney General of the State of New York By: Michael C. Rizzo, Assistant Attorney General
Synopsis
Claim dismissed for lack of service on the Attorney General.
Case information
| UID: | 2019-038-604 |
| Claimant(s): | JOHN W. MILNER |
| Claimant short name: | MILNER |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK, GOVERNOR ANDREW CUOMO, ATTORNEY GENERAL LETITIA JAMES, DETECTIVE JOHN FLOOD, 2 UNNAMED DETECTIVES, AND SOMERS POLICE CHIEF MICHAEL DRISCOLL |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 132948 |
| Motion number(s): | M-94337 |
| Cross-motion number(s): | |
| Judge: | W. BROOKS DeBOW |
| Claimant's attorney: | JOHN W. MILNER, Pro se |
| Defendant's attorney: | LETITIA JAMES, Attorney General of the State of New York By: Michael C. Rizzo, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | November 6, 2019 |
| City: | Saratoga Springs |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
This claim seeks compensation for civil rights violations related to the alleged failure of the named defendants to investigate claimant's allegations that his family members "received corrupt wealth from the United States Treasury, in the amount of about $3 million" (Claim No. 132948, ¶ 2). An order to show cause why the claim should not be dismissed for lack of service upon the Attorney General of the State of New York was issued by the Court. The Attorney General has submitted an affirmation of counsel in response to the order to show cause asserting that it received a cover letter and verification page from claimant but that it was never served with the claim. Claimant has not responded to the order to show cause.
The instant motion was originally returnable October 2, 2019. By email correspondence dated September 27, 2019, claimant requested an adjournment of the return date to allow him additional time to respond (see Milner Email, dated September 27, 2019), which was granted, and the motion was made returnable November 6, 2019 (see Broad Email, dated September 27, 2019). Nevertheless, claimant has failed to respond to the order to show cause. --------
Court of Claims Act § 11 (a) (i) requires service of the claim upon the Attorney General "personally or by certified mail, return receipt requested." 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]).
The two-page claim that is appended with four documents was filed with the Clerk of the Court of Claims on April 18, 2019 (see Claim No. 132948). On May 2, 2019, the Clerk received correspondence from claimant dated April 29, 2019 enclosing the verification for the claim (see id.). Neither the claim nor the subsequently submitted verification was accompanied by an affidavit of service on the Attorney General, and no answer was filed by defendant.
The Assistant Attorney General defending the claim states that on May 2, 2019, the Office of the Attorney General (OAG) received a cover letter from claimant enclosing the verification page for the instant claim (see Rizzo Affirmation, ¶ 4). The letter, which is dated April 29, 2019, includes the claim number for the instant claim and states "[e]nclosed please find a verification page for the above claim, which was transmitted to your office last week" (id., Exhibit A [Milner Correspondence, dated Apr. 29, 2019]). Attached to the cover letter is a copy of the second page of the claim, which bears the verification, sworn to April 29, 2019 (see id. [Verification Page, sworn to Apr. 29, 2019]). The AAG argues that the OAG was never served with a notice of intention to file a claim or a claim with respect to the allegations contained in the claim filed with the Court of Claims, that the Court therefore lacks jurisdiction over the claim, and that the claim must be dismissed (see id. at ¶¶ 5-6).
In support of its affirmation of counsel, the AAG has submitted the affidavit of Debra L. Mantell, an employee of the OAG, who avers that it is the OAG's business practice to record certain information about every claim the OAG receives in its digital case management system (see id., Exhibit B [Affidavit of Debra L. Mantell, sworn to Aug. 30, 2019, ¶¶ 2-4]). Mantell further avers that on April 23, 2019, the OAG received correspondence from the Court of Claims, dated April 22, 2019, stating that the claim was filed with the Court on April 18, 2019 (see id. at ¶ 5). Mantell states that a search of the OAG's digital case management system failed to locate any record that the OAG had received the claim (see id.). Mantell avers that on or about May 10, 2019, the OAG requested a copy of the filed claim from the Clerk of the Court of Claims and, after receiving the claim, performed a second search of the OAG's digital case management system (see id. at ¶¶ 6-7). Mantell states that the second search also failed to locate any record that the claim had been served on the OAG (see id. at ¶¶ 7-8).
Based on the foregoing, the Attorney General has demonstrated that, although the OAG received the verification page for the instant claim several weeks after the claim was filed with the Court, the OAG was never served with the claim itself. Claimant has not responded to the Order to Show Cause and as a result has failed to dispute the Attorney General's showing of lack of service. Thus, the Court's jurisdiction over the claim has not been established, and it must be dismissed (see Suarez v State of New York, 193 AD2d 1037, 1038 [3d Dept 1993]; Duncan v State of New York, 33 Misc 3d 947, 948-949 [Ct Cl 2011]).
Accordingly, it is
ORDERED, that motion number M-94337 is GRANTED, and Claim No. 132948 is hereby DISMISSED.
November 6, 2019
Saratoga Springs, New York
W. BROOKS DeBOW
Judge of the Court of Claims Papers considered: 1. Claim No. 132948, filed April 18, 2019; 2. Order to Show Cause, dated July 30, 2019; 3. Affirmation of Michael C. Rizzo, AAG, dated September 6, 2019, with Exhibits A-B; 4. Affidavit of Service of Serena M. Campon, sworn to September 6, 2019; 5. Email Correspondence of John W. Milner, dated September 27, 2019; 6. Email Correspondence of Kimberley Broad, Principal Court Attorney, dated September 27, 2019.