New York State Court of Claims

New York State Court of Claims

GRAY v. THE STATE OF NEW YORK, #2000-010-003, Claim No. 97777, Motion Nos. M-60987, CM-61075


Synopsis


Defendant moved to dismiss pro se inmate's claim because it was not properly served. Claimant asserted that defendant failed to comply with his request for service return receipt requested. Court adjourned motion for submissions by claimant.

Case Information

UID:
2000-010-003
Claimant(s):
DWAINE GRAY, 96A-7110
Claimant short name:
GRAY
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
97777
Motion number(s):
M-60987
Cross-motion number(s):
CM-61075
Judge:
Terry Jane Ruderman
Claimant's attorney:
DWAINE GRAYPro Se
Defendant's attorney:
HON. ELIOT SPITZER
Attorney General for the State of New YorkBy: Elyse J. Angelico, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
March 3, 2000
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision


The following papers numbered 1-2 were read and considered by the Court on (1) claimant's application to deem his Notice of Intention properly served, or alternatively, for leave to file a late claim and (2) defendant's cross-motion to dismiss:
Notice of Motion, Claimant's Supporting Affidavit...................................................1

Notice of Cross-Motion, Attorney's Supporting Affirmation..................................2

Filed Papers: Claim, Answer


On May 5, 1997, claimant served the Attorney General's office with a Notice of Intention to File a Claim. The Notice of Intention alleged that on April 5, 1997, during claimant's incarceration at Sing Sing Correctional Facility, he was assaulted by another inmate due to defendant's negligent supervision. A claim was subsequently filed with the Court and, on February 13, 1998, the claim was served upon the Attorney General's office. Defendant's answer, filed March 30, 1998, raised the affirmative defense of lack of jurisdiction on the ground that claimant had served the Notice of Intention by certified mail rather than by personal service or certified mail, return receipt requested.

Claimant asserts in his motion papers that he requested defendant's facility to send the Notice of Intention certified mail, return receipt requested and he refers to an "attached disbursement form" (see, Claimant's Supporting Affidavit, ¶4); however the form is not attached. If claimant can produce the form and establish that he had requested service by certified mail, return receipt requested and the request was not honored by defendant's employees, then defendant shall be estopped from raising the affirmative defense at trial. At this time, however, the Court does not have the disbursement form before it, therefore claimant's motion and defendant's cross-motion shall be adjourned until May 17, 2000 so that claimant may submit the disbursement form and any other relevant documentation on this issue.

If by May 17, 2000, the Court does not receive any documentation from claimant, claimant's motion shall be DENIED in its entirety and defendant's cross-motion to dismiss shall be GRANTED.

To the extent that claimant's application seeks leave to file a late claim, the application is DENIED on the papers submitted; however claimant may renew his application on proper papers before the statute of limitations for a like claim would lapse under the CPLR, i.e., April 5, 2000 (Court of Claims Act § 10[6]; CPLR 214).


March 3, 2000
White Plains, New York

HON. TERRY JANE RUDERMAN
Judge of the Court of Claims