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.