New York State Court of Claims

New York State Court of Claims

WASHINGTON v. THE STATE OF NEW YORK, #2000-015-062, Claim No. 101820, Motion No. M-61554


Synopsis


Court of Claims Act § 10 (9) will not be applied retroactively.

Case Information

UID:
2000-015-062
Claimant(s):
HERBERT WASHINGTON
Claimant short name:
WASHINGTON
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
101820
Motion number(s):
M-61554
Cross-motion number(s):

Judge:
Francis T. Collins
Claimant's attorney:
Herbert Washington, Pro Se
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Joel L. Marmelstein, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
August 10, 2000
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The motion of the defendant for an order dismissing the claim for lack of jurisdiction is granted. This is a claim by an inmate appearing pro se and alleging various constitutional tort, intentional tort, and negligence theories of recovery relating to the destruction of items of personal property in the package room at Marcy Correctional Facility on November 9, 1999. In particular, claimant alleges that he received six packages of dried soup, two packages of Jell-O, and one oversize can of beef stew from his mother on October 25, 1999. The items were not permitted at the Marcy facility and claimant was advised that he could either donate the items or have them destroyed. Instead, claimant advised a correction officer that he wished to mail the disallowed food items home as permitted in a directive of the Department of Correctional Services (DOCS). The items allegedly were not mailed because there were insufficient funds available in the claimant's inmate account to pay for the postage and the disallowed food items were destroyed on November 9, 1999. On November 15, 1999, claimant filed an administrative claim with respect to the loss. The claim alleges that notices of intention to file a claim were filed with [sic] the Attorney General on November 9, 1999 and December 28, 1999.

The dismissal motion is premised, in part, upon the two affirmative defenses contained in the answer alleging that the Court lacks jurisdiction because neither a claim nor a notice of intention to file a claim was served upon the Attorney General within 90 days of accrual. Defense counsel contends that the Attorney General received the notice of intention to file a claim and claim on February 16, 2000 by certified mail, return receipt requested. Defendant argues that since the claim accrued on November 9, 1999, (the time of the destruction of the items of personal property) this Court is without jurisdiction due to claimant's failure to serve the Attorney General with either a notice of intention to file a claim or a claim within 90 days of accrual.

Claimant replies in opposition to the dismissal motion that he served a notice of intention upon the Attorney General by certified mail, return receipt requested, on December 20, 1999, and he supports that argument with a copy of his affidavit of service which is time stamped as having been received by the Clerk of the Court of January 21, 2000. Claimant further argues that the claim did not arise until his administrative remedy was denied on December 10, 1999 since he was required to exhaust his administrative remedy prior to bringing a claim in this Court. Neither argument is meritorious.

Court of Claims Act § 11 provides that a claim or notice of intention to file a claim must be served upon the Attorney General either personally or by certified mail, return receipt requested. Court of Claims Act §§ 10(3) and 10(3-b) require that, for causes of action such as those contained in the instant claim, service of a notice of intention to file a claim or claim must be made upon the Attorney General within 90 days of accrual. Failure to comply with the time limitations set forth in Court of Claims Act § 10 deprives this Court of jurisdiction to determine the claim (State of New York v Dewey, 260 AD2d 924). The defendant has not waived any objection premised upon a failure to comply with the service or filing requirements of Court of Claims Act §§ 10 and 11 (Fowles v State of New York, 152 Misc 2d 837, 839) in that the affirmative defenses herein were pleaded with the requisite specificity (Scalise v State of New York, 210 AD2d 916). A claimant's argument that he timely served a claim and notice of intention to file a claim upon the Attorney General by certified mail, return receipt requested, will be rejected when in opposing the motion the claimant "neither produced the signed return receipt nor offered any explanation for its absence" (Commack Self-Service Kosher Meats, Inc .v State of New York, ____ AD2d _____, 704 NYS2d 737). Here, claimant has not submitted the return receipt for the alleged certified mailing of the notice of intention nor offered any explanation for his failure to do so.

Prior to the enactment of subdivision 9 of section 10 of the Court of Claims Act, which became effective on December 7, 1999, the exhaustion of an administrative remedy was not a condition precedent to the commencement of a claim in this Court by an inmate seeking to recover the value of items of personal property allegedly lost or damaged through the acts of DOCS' employees. In the case of Mathis v State of New York, Ct Cl, June 28, 2000 [Claim No. 102059, Motion No. M-61437], Collins, J., unreported, a copy of which is annexed, this Court held that the provisions of Court of Claims Act § 10 (9) will not apply retroactively to causes of action accruing prior to its effective date of December 7, 1999. Since claimant's causes of action accrued on the date his personal property was destroyed (November 9, 1999) he was free to pursue his claim under the prior law without having to exhaust his administrative remedy. Therefore, this claim did not accrue on December 10, 1999, the date the claimant's administrative claim was denied. The defendant's motion to dismiss is granted.


August 10, 2000
Saratoga Springs, New York

HON. FRANCIS T. COLLINS
Judge of the Court of Claims


The Court considered the following papers:
  1. Notice of motion dated April 12, 2000;
  2. Affirmation of Joel L. Marmelstein dated April 12, 2000, with exhibits;
  3. Unsworn statement in opposition of Herbert Washington dated June 22, 2000, with exhibits;
  4. Letter of Assistant Attorney General Joel L. Marmelstein dated June 28, 2000;
  5. Unsworn statement of Herbert Washington dated June 27, 2000.