Opinion
# 2019-058-033 Claim No. 125069 Motion No. M-94844 Motion No. M-94855
12-04-2019
KEN SMITH v. STATE OF NEW YORK
Ken Smith, Pro Se Hon. Letitia James, Attorney General By: Thomas Trace, Esq., Associate Attorney
Synopsis
Defendant's motion to dismiss Claim granted for Claimant's failure to timely and properly serve the Claim in accordance with Court of Claims Act § 11 (a) (i) and prior Court order granting late claim relief; Claimant's motion for the issuance of trial subpoenas denied as moot.
Case information
| UID: | 2019-058-033 |
| Claimant(s): | KEN SMITH |
| Claimant short name: | SMITH |
| Footnote (claimant name) : | |
| Defendant(s): | STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 125069 |
| Motion number(s): | M-94844,M-94855 |
| Cross-motion number(s): | |
| Judge: | CATHERINE E. LEAHY-SCOTT |
| Claimant's attorney: | Ken Smith, Pro Se |
| Defendant's attorney: | Hon. Letitia James, Attorney General By: Thomas Trace, Esq., Associate Attorney |
| Third-party defendant's attorney: | |
| Signature date: | December 4, 2019 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
On June 2, 2014, pro se Claimant Ken Smith, an inmate, filed a motion seeking permission to serve and file a late claim (M-85223). The proposed Claim alleged that Claimant was not provided adequate and timely medical assistance for an injury that he suffered to his right hand at Mid-State Correctional Facility on November 23, 2013.
By Decision and Order dated August 21, 2014 and entered September 18, 2014, this Court (Midey, J.) granted Claimant's motion and directed him "to file and serve a properly verified claim within 45 days from the date of filing of this decision and order in the Clerk's office . . . in accordance with the Court of Claims Act, with particular reference to sections 10, 11 and 11-a" (see Affirmation of Thomas Trace, Esq., Associate Attorney, Ex A at 5 [Smith v State of New York, M-85223 [Ct Cl, Midey, J., Sept. 18, 2014]). On October 2, 2014, Claimant filed this Claim with the Chief Clerk of the Court. No answer to the Claim has been filed.
Claimant now moves for the issuance of subpoenas directing the production of witnesses and documents for a trial of the above Claim scheduled for December 5, 2019 (M-94855). Defendant moves to dismiss the Claim pursuant to CPLR 3211 (a) (2) and (8) on the grounds that the Court lacks both personal jurisdiction and subject matter jurisdiction (M-94844). Specifically, Defendant contends that the Court lacks both personal jurisdiction over it and subject matter jurisdiction over the Claim because the Claim was never served upon the New York State Attorney General's Office by certified mail, return receipt requested as mandated by Court of Claims Act § 11 (a) (i). In particular, Defendant contends that although the Attorney General was served with Claimant's motion for permission to file a late claim by certified mail, return receipt requested, it was never served with the instant Claim.
In support of its motion, Defendant includes an affidavit from Debra L. Mantell, "a Legal Assistant II in the Albany Office of the Attorney General of the State of New York," who attested that she is familiar with the record-keeping system of the Attorney General's Office regarding notices of intention, motions, and claims that are served upon the Attorney General's Office (see Affirmation of Thomas Trace, Esq., Associate Attorney Ex C [Affidavit of Debra L. Mantell, sworn to on October 28, 2019] ¶¶ 1-2). Ms. Mantell affirms that her thorough search of the records of the New York State Attorney General's Office "disclosed no record that the Attorney General was served a claim on or after September 18, 2014 either by [Claimant], or by someone using DIN # 00-A-3811, for an incident that occurred at Mid-State Correctional Facility on or about November 24, 2013" (id. at ¶ 11). Because Defendant's motion implicates this Court's jurisdiction, it will be addressed first.
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 serve the Attorney General with the Claim divests the Court of subject matter jurisdiction (see Finnerty v New York State Thruway Auth., 75 NY2d 721, 723 [1989]; Maude V. v New York State Off. of Children & Family Servs., 82 AD3d 1468, 1469 [3d Dept 2011]). Claimant bears the ultimate burden of establishing proper service by a preponderance of the credible evidence (see Caci v State of New York, 107 AD3d 1121, 1124 [3d Dept 2013]; Hallston Manor Farm, LLC v Andrew, 60 AD3d 1330, 1330 [4th Dept 2009]; Boudreau v Ivanov, 154 AD2d 638, 639 [2d Dept 1989]).
Claimant has not filed any papers in opposition to the motion and has not otherwise established proof of service of the Claim in accordance with Court of Claims Act § 11 (a) (i). Claimant merely attaches to his Claim an Affidavit of Service and return receipt relative to the late claim motion. These documents are insufficient to establish proof of service of the Claim in accordance with both this Court's September 18, 2014 Decision and Order and Court of Claims Act § 11 (a) (i). In sum, because Claimant has failed to establish that the Claim was served upon Defendant by certified mail, return receipt requested as mandated by Court of Claims Act § 11 (a) (i), this Court lacks personal jurisdiction over Defendant and subject matter jurisdiction over the Claim.
On November 18, 2019, the Court received Claimant's "Affirmation in Opposition to Motion to Dismiss." Although Claimant was advised that such submission was untimely and would not be considered in deciding the motion, the Court has indeed reviewed and considered the submission and concludes that it fails to establish that Claimant served the Claim upon Defendant by certified mail, return receipt requested as mandated by Court of Claims Act § 11 (a) (i) and the Court's September 18, 2014 Decision and Order. Consequently, Claim No. 125069 must be dismissed. In light of the dismissal of the Claim, Claimant's motion is denied as moot.
Accordingly, it is hereby
ORDERED, that Defendant's motion number M-94844 is granted and Claim No. 125069 is DISMISSED; and it is further
ORDERED that Claimant's motion number M-94855 is denied as moot.
December 4, 2019
Albany, New York
CATHERINE E. LEAHY-SCOTT
Judge of the Court of Claims The Court has considered the following in deciding these motions: (1) Claimant's Notice of Motion and Affidavit in Support dated October 29, 2019. (2) Claim No. 125069 filed on October 2, 2014. (3) Notice of Motion to Dismiss, dated October 29, 2019. (4) Affirmation of Thomas Trace, Esq., Associate Attorney in Support of the Motion to Dismiss, dated October 29, 2019 with exhibits. (5) Claimant's Affirmation in Opposition to Motion to Dismiss, received November 18, 2019. (6) Letter from James J. Wisniewski, Esq., dated November 19, 2019, with attachment. (7) Claimant's letter dated November 25, 2019.