Mabry v State of New York

[*1] Mabry v State of New York 2007 NY Slip Op 52468(U) [18 Misc 3d 1108(A)] Decided on November 28, 2007 Ct Cl Mignano, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on November 28, 2007
Ct Cl

Sharon Mabry, Claimant,

against

The State of New York, Defendant.



110024



For Claimant:

SHARON MABRY, pro se

For Defendant:

ANDREW M. CUOMO, ATTORNEY GENERAL

By: Elyse Angelico, Assistant Attorney General

Stephen J. Mignano, J.

Defendant moves to dismiss the claim, based on the allegation that claimant has failed to obtain personal jurisdiction over the defendant. The claim was filed on October 27, 2004 and no answer has been interposed by defendant. On October 2, 2007, the parties were notified that the claim was scheduled for trial on December 7, 2007.

The motion was served on November 16, 2007 and made returnable November 28, 2007, 12 days later, or one day short of the 13 day period required by the CPLR (§§ 2214[b]; 2103[b][2], 2103[c]). Nevertheless, since claimant received defendant's papers in time to submit opposition papers, which the court has received, the court will consider the motion on its merits.

Defendant asserts that it has reviewed its files and searched its computer system and "has determined that Claimant has failed to file or serve upon the attorney general a claim or notice of intention to file a claim in accordance with Court of Claims Act Sections 10 and 11." [FN1] After review of the papers, the court reaches a different conclusion.

Defense counsel alleges:

"Claimant filed the first notice of intention, with a claim attached, on October 27, 2004, which the Attorney General's office designated as a Notice of Intention. Regardless of whether an [*2]argument could be made that it was a claim, this notice of intention was received by Regular Mail, and as such, Claimant did not comply with Court of Claims Act § 11."[FN2]

Claimant, in her opposition papers (which were not duly sworn) asserts that her notice of intention and claim were in fact served by certified mail, return receipt requested, and attaches a copy of a disbursement request requesting that something be mailed to the Attorney General by certified mail, return receipt requested. The date of this request is not clear and the court cannot conclude that this disbursement request applied to this claim. Nevertheless, it is irrelevant to the court's determination of this motion.

Defendant admits that it was served with a copy of this claim (a copy of which was appended to defendant's motion papers) on the same date it was filed with the Clerk of the Court. Defendant's contention, as evidenced by the above quotation, is that because the claim was contained in the same envelope as a notice of intention to file a claim, or perhaps because they were stapled together, it had the discretion to treat the entire mailing as a notice of intention requiring no responsive pleading from defendant. Defendant submits no authority or argument in support of this innovative position and the court finds it without merit. Obviously, it is redundant and without effect for a claimant to serve a notice of intention contemporaneously with a claim since the sole purpose of the former document is to extend the time to serve and file the latter. Nevertheless, the court has seen many instances of pro se claimants unnecessarily serving a notice of intention with a claim. This court has never heard the argument that in such cases the claim is somehow nullified by its inclusion in the same mailing with an unnecessary and superfluous notice of intention.

Defendant next contends that even if claimant served a claim on October 27, 2004 (which she unquestionably did), the court lacks jurisdiction because the claim was served by regular mail, in contravention of Court of Claims Act § 11(a). However, in 1990, the Legislature added § 11(c) to the Court of Claims Act, providing that a defense based on the "manner of service" requirements of § 11(a) "is waived unless raised, with particularity" in the answer or in a pre-answer dismissal motion and that once the defense is waived, "the court shall not dismiss the claim" for the failure to serve it properly. No answer or pre-answer motion was ever made in this case and this failure is fatal to defendant's present argument. The time in which to do so expired 40 days after October 27, 2004 (Uniform Rules for the Court of Claims, 22 NYCRR § 206.07). Thus, any defense based on regular mail service has been waived (see Knight v State of New York, 177 Misc 2d 181 [1998]), and the motion to dismiss is denied.

Additionally, since defendant failed to answer the claim, it appears that it is in default. Although Court of Claims Act § 12(1) prevents entry of a default judgment against the State and requires that any judgment be based on sufficient evidence, defense counsel should examine the decision in Gibson v State of New York (Ct Cl, O'Rourke, J., UID No. 2000-017-611, Claim No. 101212, Motion No. M-61208, 12/20/2000) and other decisions addressing the topic and be prepared to show cause, at trial, why it should not be precluded from calling witnesses or [*3]presenting evidence on the liability aspect of the claim.

Papers considered:

Notice of Motion, Affirmation and Exhibits.

Claimant's Affirmation.

Claim. Footnotes

Footnote 1:Supporting Affirmation, ¶ 2.

Footnote 2:Supporting Affirmation, ¶ 3. Defendant apparently refers to the "first" notice of intention because claimant served a different notice of intention, relating to an entirely different occurrence, in November 2004, a document having nothing at all to do with this case.