New York State Court of Claims

New York State Court of Claims

PHILLIPS v. THE STATE OF NEW YORK, #2000-005-502, Claim No. 100933, Motion No. M-60432


Claim was untimely served more than two years after accrual of the cause of action (after a Notice of Intention had been served), and improperly served claim by regular mail. Both deficiencies mandate dismissal of claim.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Donald J. Corbett
Claimant's attorney:
William R. PhillipsPro Se
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Timothy P. Mulvey, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
June 6, 2000

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers, numbered 1 to 3, were read on motion by Defendant for dismissal of the claim:

Papers Numbered

Notice of Motion, Affidavit and Exhibits Annexed 1, 2

Opposing Unsworn Affidavit 3

Upon the foregoing papers, this motion is granted.

The Defendant moves to dismiss the claim herein on two grounds. First, it is alleged that the claim, which asserts a cause of action which sounds in medical malpractice/medical negligence relating to the loss of Claimant's right eye on or about July 11, 1997, is untimely, and second that the manner of service of the claim does not comport with the statutory requirements of Court of Claims Act §11.

A review of the moving papers herein reveals that a Notice of Intention to file a claim was served upon the Defendant by certified mail return receipt requested on August 29, 1997, alleging the aforementioned negligence/malpractice culminating in the surgical removal of the eye on July 11, 1997, the last date mentioned in the Notice of Intention, and apparently the end of the medical treatment complained of. The manner of service, to wit, by Certified Mail, Return Receipt Requested, is demonstrated by a copy of the envelope in which it was received (see, Exhibit A to the moving papers), and recited in Claimant's cover letter transmitting said Notice of Intention.

The claim itself was received by the Defendant on August 20, 1999. A copy of the envelope with which it was served is appended to the moving papers as Exhibit B, and includes the affidavit of service of the claim which recites that Claimant "placed in the United States Mail at the Auburn Correctional Facility copies of the attached legal papers, in pre-paid wrappers, to be mailed to the following parties ...." The cover letter transmitting the claim, contrasted with the one transmitting the Notice of Intention, does not recite the specific manner of service. In any event it is the timeliness and manner of this service for which the Defendant seeks dismissal of the claim. This motion is made in lieu of the filing of an answer.

The Claimant replies by averring that proper and timely service of the Notice of Claim was achieved, that the affidavits filed with the Clerk attest to the time (sic) service of the Notice of Claim. Claimant then addresses a two-year period for the filing of briefs. Furthermore, Claimant, in addressing the contention that the claim was not served by Certified Mail Return Receipt Requested, avers that "this request was made by the Claimant, but the DOCS did not follow his instructions to mail out the papers Certified Mail return Receipt Requested." Claimant confuses several documents herein, discusses a Notice of Claim which does not exist in the Court of Claims, and references the filing of briefs within two years of accrual. The papers before the court, as appended to the moving papers, are unrefuted and require the result below.

The motion must be granted. First, the cause of action accrued on or about July 11, 1997, when Claimant's eye was removed. Since Claimant chose to utilize a Notice of Intention to file a claim, Court of Claims Act §10 (3) requires that a "claim shall be filed and served upon the attorney general within two years after the accrual of such claim." Here it is clear that the cause of action, whether sounding in medical malpractice or medical negligence, accrued on July 11, 1997, and thus the service of the claim on August 20, 1999, some two years and five weeks after its accrual, was untimely. On that basis alone, the claim was untimely served and must be dismissed.

The Defendant's second ground for dismissal, to wit, improper service, also supports dismissal of the claim. When Claimant served the Notice of Intention, he carefully and properly had the mailing accomplished by the statutorily required method, to wit, Certified Mail, Return Receipt Requested (Section 11[a]). His cover letter clearly specified the precise manner of such service. With respect to the claim, his affidavit of service does not recite the required manner of service, and only discusses (regular) mailing of the same. The envelope itself is consistent with service by regular mail. Claimant's only argument is the self-serving and totally unsupported contention that DOCS "did not follow his instructions to mail out the papers by certified mail return receipt requested." There is no support for this contention. In other cases where the same argument has been made, inmates have supported their argument by providing copies of their properly dated requests for the disbursement of funds to show their intent to obtain postage for certified mail return receipt requested, and to demonstrate the failure to follow the inmate's instructions. Here however, Claimant has nothing to support his argument, which is belied in any event by his own Affidavit of Service which only references mail, not certified mail return receipt requested. Of course, Claimant had already served his Notice of Intention in the proper fashion. This is not, as Claimant asserts, merely a procedural error that was through no fault of Claimant's. The manner of service is a jurisdictional issue (Philippe v State of New York, 248 AD2d 827, where an inmate's use of ordinary mail was insufficient to acquire jurisdiction over the State), not a procedural one as urged by Claimant..

Accordingly, the motion to dismiss is granted on both grounds sought, the untimely service of the claim more than two years after its accrual, and the improper service of the claim by regular mail.

June 6, 2000
Rochester, New York

Judge of the Court of Claims