New York State Court of Claims

New York State Court of Claims

COBB v. STATE OF NEW YORK, #2000-006-963, Claim No. 102558, Motion Nos. M-62841, CM-62892


Synopsis



Case Information

UID:
2000-006-963
Claimant(s):
DERRICK COBB
Claimant short name:
COBB
Footnote (claimant name) :

Defendant(s):
STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
102558
Motion number(s):
M-62841
Cross-motion number(s):
CM-62892
Judge:
EDGAR C. NeMOYER
Claimant's attorney:
DERRICK COBB, PRO SE
Defendant's attorney:
ELIOT SPITZER, ATTORNEY GENERAL
By: Paul Volcy, Esq.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
January 11, 2001
City:
Buffalo
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

This is defendant's motion for an order of this court dismissing the claim pursuant to CPLR Rule 3211(a)(8) on the ground the court does not have jurisdiction of the claim, and claimant's cross-motion for an order of the court treating claimant's notice of intention to file claim as the claim. In deciding this motion the court has read and reviewed the following papers:
  1. Notice of motion dated December 12, 2000 and filed December 13, 2000.
  1. Affidavit of Paul Volcy, Esq., Assistant Attorney General, sworn to December 12, 2000, along with exhibits attached thereto, in support of the motion.
  1. Claimant's cross-motion dated December 23, 2000 and filed December 29, 2000.
  1. Claimant's statement in support of the cross-motion.
  1. Claim dated May 17, 2000 and filed June 2, 2000.
  2. Answer verified June 15, 2000 and filed June 21, 2000.
  3. Notice of intention to file claim verified November 19, 1998.
This is a lost, damaged, and/or destroyed property claim in the amount of $267.94 which occurred during claimant's transfer between various correctional facilities. The first cause of action of the claim occurred on September 21, 1998 after claimant's transfer from Lakeview Correctional Facility to Oneida Correctional Facility. Claimant alleges that, when he viewed his property that day, two items were damaged and a draft bag containing other personal property was missing. The second cause of action occurred on October 21, 1998 after claimant's transfer from Oneida Correctional Facility to Mohawk Correctional Facility. Claimant alleges once again, when he viewed his property after the transfer, items of personal property were damaged and some missing. Claimant's third cause of action relates to the destruction as contraband of claimant's notebook and other written materials on October 8, 1998 at Oneida Correctional Facility. It appears claimant became aware of the alleged destruction of his personal property around November 10, 1998, after his transfer from Mohawk Correctional Facility to Mid-State Correctional Facility. Claimant alleges the defendant was negligent in failing to adequately care for his property, and in destroying various items of his personal property.

By this motion to dismiss, the defendant alleges the claim was served upon the Attorney General by regular mail, and therefore, the court lacks jurisdiction of the claim. Paragraph "9" of the defendant's answer sets forth this jurisdictional objection with particularity. Therefore, defendant is in compliance with Section 11(c) of the Court of Claims Act and has not waived this jurisdictional objection. The court notes there is a typographical error in paragraph "9", in that the word "served" is omitted from the paragraph. However, the court believes it is obvious to anyone reading this affirmative defense, that it is putting one on notice, the service of the claim was not by certified mail, return receipt requested as required by Section 11(a) of the Court of Claims Act.

Section 11(a) of the Court of Claims Act requires the claim to be served upon the Attorney General either personally or by certified mail, return receipt requested. A claim which is not served in this manner is subject to dismissal because of the absence of personal jurisdiction over the defendant. Adkison v State of New York, 226 AD2d 409; Bogel v State of New York, 175 AD2d 493; Baggett v State of New York, 124 AD2d 969. Paragraph "4" of claimant's statement in support of his cross-motion acknowledged he did not serve the Attorney General with his claim by certified mail, return receipt requested. Consequently, the court does not have jurisdiction of the claim, and it must be dismissed.

Claimant has cross-moved for an order of the court treating claimant's notice of intention to file claim as the claim. Defendant has acknowledged in its affidavit supporting the motion to dismiss that it received a timely and properly served notice of intention to file claim from the claimant. Court of Claims Act § 10(8)(a) permits the court to treat the notice of intention to file claim as a claim, if the CPLR Statute of Limitations has not expired, when the claimant has timely served and filed a notice of intention to file claim, but failed to timely serve or file a claim. This section appears to be an anomaly, since, when this claim accrued and claimant subsequently served the Attorney General with his notice of intention to file claim, there was no requirement upon claimant to file his notice of intention to file claim with the Clerk of the Court of Claims. Furthermore, if claimant had attempted to file his notice of intention to file claim, the Clerk of the Court of Claims would have returned it to him unfiled. However, a literal reading of Court of Claims Act § 10(8)(a) requires the court to deny claimant's cross-motion, because he complied with Court of Claims Act § 10(3) by properly serving the Attorney General with his notice of intention to file claim, and not filing it with the Clerk of the Court of Claims[1]. If any changes are to be made in Court of Claims Act § 10(8)(a), it must be done by the legislature and not the court.

Despite the foregoing, the court, in the interest of justice and to avoid further unnecessary motion practice, will consider claimant's motion as one to file a late claim. Notice, opportunity to investigate and substantial prejudiced to the defendant if this claim was permitted to be filed are not issues here. The defendant had timely notice of the claim through the timely and properly served notice of intention to file claim. Therefore, defendant had an opportunity to investigate, and would not be substantially prejudice by the filing of the claim. The claim appears to be meritorious. On the face of it and based solely on the allegations of the claim, it seems claimant's property was either damaged, lost or destroyed while in the custody and control of the defendant. Finally, claimant does not have an alternative remedy. Since this claim accrued prior to the enactment of Court of Claims Act § 10(9), claimant was not required to exhaust his administrative remedies prior to filing his claim. Scott v State of New York, Court of Claims, Claim No. 101879, Motion No. M-61385, filed 6/15/2000, Lane, J. In any event, from the allegations set forth in the claim, and exhibits attached thereto, it appears claimant has exhausted his administrative remedies. Based upon the foregoing, the court deems it appropriate to grant claimant permission to file a late claim, as exactly set forth in his claim number 102558, filed June 2, 2000.

Accordingly, it is

ORDERED, that defendant's motion is granted, and claim number 102558 is hereby dismissed, and it is further

ORDERED, that claimant is granted permission to file a late claim, which will be a duplicate of claim number 102558, and it is further

ORDERED, that claimant is directed to serve and file his claim in full compliance with the Court of Claims Act within 45 days of the filing date of this order, and it is further

ORDERED, that insomuch as claimant's cross-motion sought other alternative relief, it is denied on the ground it is moot.



January 11, 2001
Buffalo, New York

HON. EDGAR C. NEMOYER
Judge of the Court of Claims




[1]Yossarian lives on.