Opinion
# 2019-032-056 Claim No. 125676 Motion No. M-94073
10-09-2019
PAUL WILLIFORD v. THE STATE OF NEW YORK
Paul Williford, Pro Se Hon. Letitia James, Attorney General By: Ray A. Kyles, AAG
Synopsis
The claim is dismissed for claimant's failure to serve the claim upon the Attorney General.
Case information
| UID: | 2019-032-056 |
| Claimant(s): | PAUL WILLIFORD |
| Claimant short name: | WILLIFORD |
| Footnote (claimant name) : | |
| Defendant(s): | |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 125676 |
| Motion number(s): | M-94073 |
| Cross-motion number(s): | |
| Judge: | JUDITH A. HARD |
| Claimant's attorney: | Paul Williford, Pro Se |
| Defendant's attorney: | Hon. Letitia James, Attorney General By: Ray A. Kyles, AAG |
| Third-party defendant's attorney: | |
| Signature date: | October 9, 2019 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
The Court has sua sponte amended the caption to reflect the State of New York as the proper defendant. --------
Decision
The instant claim was filed with the Clerk of the Court on February 17, 2015. Defendant now moves to dismiss the claim on the grounds that the Court lacks jurisdiction over the claim as claimant failed to serve the claim upon the Attorney General pursuant to Court of Claims Act § 11 (a). Claimant has not responded to the motion. For the reasons that follow, the Court grants the unopposed motion and dismisses the claim.
"A claimant seeking to recover damages for personal injuries caused by the negligence, intentional tort or unintentional tort of an officer or employee of the State must file and serve a claim or, alternatively, a notice of intention to file such a claim, upon the Attorney General within 90 days after the accrual thereof" (Maude v New York State Off. of Children & Family Servs., 82 AD3d 1468, 1469 [3d Dept. 2011]; see Court of Claims Act § 10 [3], [3-b]). Court of Claims Act § 11 (a) (i) provides that a "claim shall be filed with the clerk of the court; and . . . a copy shall be served personally or by certified mail, return receipt requested, upon the attorney general within the times hereinbefore provided for filing with the clerk of the court." "[A]s suits against defendant are permitted only by virtue of its waiver of sovereign immunity and are in derogation of the common law, the failure to strictly comply with the filing or service provisions of the Court of Claims Act divests the court of subject matter jurisdiction and compels dismissal of the claim" (Caci v State of New York, 107 AD3d 1121, 1122 [3d Dept. 2013] [internal quotation marks and citations omitted]; see Finnerty v New York State Thruway Auth., 75 NY2d 721, 722-723 [1989]; Rodriguez v State of New York, 307 AD2d 657, 657 [3d Dept. 2003]). Once challenged, the burden is upon the claimant to establish proper service by a preponderance of the credible evidence (see Caci v State of New York, 107 AD3d at 1124; Boudreau v Ivanov, 154 AD2d 638, 639 [2d Dept. 1989]; Aquila v Aquila, 129 AD2d 544, 545 [2d Dept. 1987]).
In support of its motion to dismiss, defendant has submitted an affidavit sworn to by Debra L. Mantell, Legal Assistant II in the Claims Bureau of the Office of the Attorney General (OAG) in Albany, New York, whose job duties require her to be familiar with the Office's record keeping system (Exhibit A). Mantell avers that it is the OAG's business practice to record in its digital case management system the following details when it receives a notice of intention to file a claim or a claim: the claimant's full name as it appears on the notice of intention to file a claim and/or claim; the date of the incident; the location of the incident; the county in which the claim accrued; a description of the allegations contained within the document; the ad damnum amount; the type of document received; and the manner of service (Mantell Aff. ¶ 4). On March 4, 2015, the OAG received a letter from the Court of Claims acknowledging receipt of the instant claim (Mantell Aff. ¶ 5). Per OAG business practice, a search of the OAG's digital case management system was performed in order to locate the claim to which the letter referred (id.). The search located no such record (id.).
On May 30, 2019, the OAG requested a copy of the instant claim filed with the Clerk of the Court (Mantell Aff. ¶ 6). After receiving a copy of the instant claim, noting its contents, and performing another search, Mantell averred that she found "no record that the Attorney General received a Notice of Intention to File a Claim and/or Claim either by [claimant] . . . for an incident that occurred at Five Points Correctional Facility on or about October 2, 2014" (Mantell Aff. ¶¶ 7-8; see Verified Claim ¶ 2).
The Affidavit of Service attached to the claim filed with the Clerk of the Court fails to state that claimant served the claim upon the Attorney General by certified mail, return receipt requested, as required by Court of Claims Act § 11 (a) (i). Claimant has not responded to the instant motion nor has he provided a return receipt establishing proper service. Thus, the Court finds that the filed Affidavit of Service for the instant claim is facially invalid in that it fails to state that the claim was served upon the Attorney General by certified mail, return receipt requested (see Allen v State of New York, UID No. 2002-028-014 [Ct Cl, Sise, J., Mar. 21, 2002]).
Once challenged, the burden is upon the claimant to establish proper service by a preponderance of the credible evidence (see Caci v State of New York, 107 AD3d at 1124; Boudreau v Ivanov, 154 AD2d 638, 639 [2d Dept. 1989]; Aquila v Aquila, 129 AD2d 544, 545 [2d Dept. 1987]). Here, claimant has not submitted a response to defendant's motion to dismiss the claim. Thus, the Court finds that claimant has failed to meet his burden of establishing proper service (see Court of Claims Act § 11 [a] [i]; Caci v State of New York, 107 AD3d at 1123-1124; Scales v State of New York, UID No. 2003-030-013 [Ct Cl, Scuccimarra, J., Apr. 8, 2003]; compare Barnes v State of New York, UID No. 2016-038-510 [Ct Cl, DeBow, J., Feb. 22, 2016]). Accordingly, the claim must be dismissed (see Finnerty v New York State Thruway Auth., 75 NY2d at 723; Lewis v Dept. of Corr., UID No. 2018-038-541 [Ct Cl, DeBow, J., Apr. 24, 2018]).
Based upon the foregoing, it is hereby
ORDERED that defendant's motion number M-94073 is granted and claim number 125676 is dismissed.
October 9, 2019
Albany, New York
JUDITH A. HARD
Judge of the Court of Claims Papers Considered: 1. Verified Claim, filed on February 17, 2015. 2. Notice of Motion, dated June 7, 2019; and Affirmation in Support of Motion to Dismiss, affirmed by Ray A. Kyles, AAG on June 7, 2019, with Exhibit A annexed thereto.