JUDITH A. HARD
Synopsis
Case information
UID: 2013-032-029 Claimant(s): DANIEL RODRIGUEZ Claimant short name: RODRIGUEZ Footnote (claimant name) : Defendant(s): THE STATE OF NEW YORK Footnote (defendant The caption has been amended to reflect the only name) : properly named defendant. Third-party claimant(s): Third-party defendant (s): Claim number(s): 122136 Motion number(s): M-83390 Cross-motion number(s): Judge: JUDITH A. HARD Daniel Rodriguez, Pro Se Claimant's attorney: No Appearance Hon. Eric T. Schneiderman, NYS Attorney General Defendant's attorney: By: Douglas R. Kemp, Assistant Attorney General, Of Counsel Third-party defendant's attorney: Signature date: July 1, 2013 City: Albany Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
Claimant Daniel Rodriguez (claimant) filed the underlying claim seeking damages for defendant's alleged negligent supervision and negligent medical treatment on November 27, 2012. Defendant now moves to dismiss the claim on the ground that it was never served with the claim. Claimant failed to respond or in any way communicate with the Court on this motion. For the reasons set forth below, the motion is granted.
Section 11 (a) (i) of the Court of Claims Act requires that a copy of the claim shall be served upon the Attorney General either personally or by certified mail, return receipt requested within the times provided in section 10 of the Court of Claims Act. A claim alleging a cause of action sounding in negligence must be served upon the Attorney General within 90 days after the accrual of such claim, unless a notice of intention to file a claim is served upon the Attorney General within 90 days, in which case the claim shall be served within two years after the accrual of such claim (Court of Claims Act § 10 [3]).
Here, defendant avers that a notice of intention was served upon it by regular mail on December 12, 2012, and that no claim has ever been served upon it. Defendant submits the affidavit of Janet Barringer, a Senior Clerk in the Albany Office of the Attorney General (OAG) of the State of New York. Ms. Barringer's job duties require her to be familiar with the record keeping system of the Claims Bureau of the OAG regarding claims that are filed in the Court of Claims or received in the OAG. Ms. Barringer performed a thorough search of the OAG's records by: calling the Court of Claims on May 3, 2013 to determine a date of the incident in the underlying claim to match with the information in the OAG's electronic and paper record keeping systems, searching the electronic database by Claimant's name, and running a report of the OAG database for every document that was received or served upon Defendant in reference to Claimant. In this case, Ms. Barringer located a letter from the Court of Claims that acknowledged the December 13, 2012 filing of the underlying claim, and the receipt of a document in the Albany office entitled "Notice of Intention to File a Claim, Rodriguez v Hudson Correctional Facility" on December 12, 2012, which she states was sent by regular mail. She found no record that the claim was ever served upon the OAG.
Defendant urges that because the notice of intention was served by regular mail, it is a nullity and so the claim, which would be untimely by now, should be dismissed. The only evidence that the notice of intention was so served, however, is Ms. Barringer's assertion in her supporting affidavit. Claimant failed to respond to the motion and the allegation of improper service contained within it, and the Court finds no reason to disbelieve Ms. Barringer's sworn statement that the notice of intention was served by regular mail. While the Court would prefer to have defendant present a copy of the envelope in which the notice of intention was served, under the present circumstances the Court will accept Ms. Barringer's uncontested assertion that service was made by regular mail.
Accordingly, it is ordered that the motion (M-83390) is hereby granted and claim No. 122136 is hereby dismissed.
July 1, 2013
Albany, New York
JUDITH A. HARD
Judge of the Court of Claims
Papers Considered:
1. Notice of Motion, dated May 6, 2013.
2. Affirmation of Douglas R. Kemp, Esq., dated May 6, 2013, with annexed affidavit of Janet Barringer, sworn to on May 3, 2013.
3. Filed papers: claim.