New York State Court of Claims

New York State Court of Claims

GILES v. New York, #2000-010-012, Claim No. 96485, Motion Nos. M-60965, CM-61193


Synopsis


Defendant's motion to dismiss. Claimant's cross-motion for leave to file a late claim.

Case Information

UID:
2000-010-012
Claimant(s):
ANDREA GILES
Claimant short name:
GILES
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
96485
Motion number(s):
M-60965
Cross-motion number(s):
CM-61193
Judge:
Terry Jane Ruderman
Claimant's attorney:
WAYNE P. SMITH ESQ.
Defendant's attorney:
HON. ELIOT SPITZER
Attorney General for the State of New YorkBy: John Healey, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
April 20, 2000
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers numbered 1-7 were read and considered by the Court on defendant's motion to dismiss and claimant's cross-motion for leave to file a late claim:
Notice of Motion, Attorney's Supporting Affirmation and Exhibits.......................1

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

Affidavit of Claimant................................................................................................3

Attorney's Affirmation in Opposition to Cross-Motion...........................................4

Attorney's Affirmation in Further Opposition to Cross-Motion..............................5


Attorney's Affidavit/Sur Reply................................................................................6

Attorney's Affirmation in Opposition to Sur Reply and Exhibit..............................7

Filed Papers: Claim, Answer

On October 12, 1995, a Notice of Intention was received in the office of the Attorney General by regular mail (Defendant's Ex. A). The Notice of Intention alleged that in "mid July 1995" claimant, an inmate at Bedford Hills Correctional Facility, was injured when the leg of the chair in which claimant was sitting broke, and claimant fell backwards and hit her head. A Claim was subsequently served on June 24, 1997 and filed on June 25, 1997 (Defendant's Ex. B, Filed Claim). On July 31, 1997, defendant served an answer, asserting an affirmative defense based upon lack of jurisdiction. Specifically, defendant asserted:

The Court lacks jurisdiction over the claim since the claimant served the notice of intention on the Attorney General's office by regular mail, rather than personally upon an Assistant Attorney General, or by certified mail, return receipt requested, as required by Court of Claims Act Section 11.


(Defendant's Ex. C, ¶ 10).

Court of Claims Act §11(b) provides that a Notice of Intention to File a Claim shall state the time and place where the claim arose and the nature of the claim. The purpose of a Notice of Intention is to provide defendant with fair and timely notice of the general nature of the claim and those facts necessary to enable defendant to conduct a meaningful investigation to determine its potential liability (see, Epps v State of New York, 199 AD2d 914).

Court of Claims Act §11(a) provides that the Notice of Intention be served personally or by certified mail, return receipt requested. Claimant's self-serving affidavit, without any independent evidentiary support, such as the return receipt or a disbursement form from the facility specifying that her account was debited for the purpose of sending the Notice of Intention by certified mail, return receipt requested, is insufficient to entitle claimant to estop defendant from asserting improper service (see, Philippe v State of New York, 248 AD2d 827 [inmate's misplaced reliance upon the advice of an inmate legal assistant was not a valid excuse for failure to properly serve Notice of Intention]; cf., Wattley v State of New York, 146 Misc 2d 968 [defendant was estopped from raising improper service where defendant admitted that inmate claimant had requested certified mail, return receipt requested, and his account was debited accordingly; however requested manner of service was not acted upon by defendant's employees]).

In the instant case, claimant asserts that she never received a disbursement form confirming that she had directed the facility to send the Notice of Intention certified mail, return receipt requested (Claimant's Affidavit, ¶¶ 4,5). The affidavit of claimant's attorney, submitted in Sur Reply, indicates that it was not until February 2000 that claimant's attorney sought to obtain any records from the correctional facility which would establish that claimant had indeed requested certified mail return receipt.[1] The facility responded that, if claimant had requested certified mail, return receipt, claimant would have received a receipt that she "should have retained" (Sur Reply, Ex. A). The facility's letter acknowledged that there was a disbursement for postage on October 11, 1995 in the amount of $3.44; however, "Our records do not indicate the exact purpose of this disbursement." The affidavit of claimant's attorney asserts, "[I]t should be axiomatic that once an inmate turns over a Notice of Intent to a duly authorized official of a particular correctional facility, that that official should be charged with properly discharging their duty and mailing the Notice of Intent as called for by Section 11 of the Court of Claims Act and charging the inmate the appropriate fee for doing so" (Affidavit in Opposition to Defendant's Motion to Dismiss, ¶ 8).

The requirements of Court of Claims Act §11 are jurisdictional in nature and must be strictly construed (see, Finnerty v New York State Thruway Auth., 75 NY2d 721; Phillips v State of New York, 237 AD2d 590). Claimant's proof, i.e., her own self serving affidavit and a letter from the facility stating the records do not indicate why her account was debited, does not rise to the level of proof necessary to establish entitlement to an estoppel defense (cf., Wattley v State of New York, 146 Misc 2d 968, supra). Moreover, contrary to the argument set forth in the affidavit of claimant's attorney, it is not "axiomatic that once an inmate turns over a Notice of Intent to a duly authorized official of a particular correctional facility, that that official should be charged with properly discharging their duty and mailing the Notice of Intent as called for by Section 11 of the Court of Claims Act and charging the inmate the appropriate fee for doing so." It is claimant's duty to take the steps to ensure that her claim is properly commenced and, absent proof that she directed the facility to send the Notice of Intention by certified mail, return receipt requested, and that the facility's employees ignored claimant's request, there is no basis for this Court to consider a claim which was not commenced pursuant to the strict jurisdictional requirements set forth in the Court of Claims Act. Accordingly, claimant's Notice of Intention, which was not properly served in accordance with Court of Claims Act §11, is deemed a nullity (see, Edens v State of New York, 259 AD2d 729 [pro se inmate's Notice of Intention was jurisdictionally defective because it was sent by regular mail]). Consequently, claimant could not properly avail herself of the two year period in which to file a claim as provided by Court of Claims Act §10(3) (see, Torres v State of New York, 233 AD2d 389). Thus, the claim filed on June 25, 1997 and served upon the Attorney General's office on June 24, 1997 was untimely. Accordingly, defendant's motion to dismiss is GRANTED.

To the extent that claimant seeks leave to file a late claim, such application is untimely because it was not brought within the three year statute of limitations for a negligence claim (CPLR 214[5]), and the Court is without discretion to entertain an untimely application (Court of Claims Act §10[6]; Howard v State of New York, 175 AD2d 634). Thus, claimant's cross-motion is DENIED.


April 20, 2000
White Plains, New York

HON. TERRY JANE RUDERMAN
Judge of the Court of Claims




[1] It is noted that defendant's answer was served on July, 31, 1997 and raised the affirmative defense of improper service with sufficient specificity and, at that time, claimant could have sought leave to bring a late claim application.