New York State Court of Claims

New York State Court of Claims

DAVIS v. THE STATE OF NEW YORK, #2000-015-113, Claim No. 103010, Motion No. M-62474


Synopsis


Inmate claim for personal injuries dismissed upon admission that claim was served by regular mail.

Case Information

UID:
2000-015-113
Claimant(s):
MARION ELLIOT DAVIS
Claimant short name:
DAVIS
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :
The caption of this claim has been amended sua sponte to reflect the only properly named defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
103010
Motion number(s):
M-62474
Cross-motion number(s):

Judge:
FRANCIS T. COLLINS
Claimant's attorney:
Marion Elliot Davis, Pro Se
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: G. Lawrence DillonAssistant Attorney General
Third-party defendant's attorney:

Signature date:
January 3, 2001
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

To the extent that the defendant's pre-answer motion seeks to dismiss the instant claim for its failure to state a cause of action pursuant to CPLR 3211 (a) (7) it is denied. To the extent that the same motion seeks to dismiss the claim for lack of personal and/or subject matter jurisdiction pursuant to CPLR 3211 (a) (8) and 3211 (a) (2) the motion is granted.

The instant claim by a pro se inmate seeks money damages for an injury incurred on September 29, 1998 when the large toe of claimant's left foot was struck by the bottom of a door at the Oneida Correctional Facility in Rome, New York. The injury resulted in pain and the loss of a toe nail for which claimant seeks compensation in the amount of $600,000.

It appears from this record that claimant served a notice of intention to file a claim which was received by the Attorney General's Claims Bureau on October 21, 1998. It is not clear, however, what manner of service was used to serve the notice of intention and claimant failed to submit on this motion any proof of filing of an affidavit of service related to that document. Moreover, claimant's affidavit in opposition to this motion, which is entitled "Rebuttal Response to Pre-Answer Motion," is silent as to the method of service allegedly employed by the claimant in effecting service of the notice of intention upon the Attorney General.

Although the affirmation of Assistant Attorney General G. Lawrence Dillon in support of the motion to dismiss alleges in paragraph "4" that "No Notice of Intention to File a Claim was ever served," attached to the affirmation is a copy of a notice of intention to file a claim bearing a date stamp indicating that it was received by the Attorney General's Claims Bureau on October 21, 1998. Such affirmation further alleges in paragraph "7" that the documents were sent to the Attorney General's office by regular mail only. No copy of the envelope used by claimant to serve the notice of intention to file a claim was attached to the affirmation but defendant's counsel's allegation regarding service by regular mail of the notice of intention stands unrefuted on this record.

The defendant's attorney further alleges in paragraph "4" of his affirmation that the claim was "sent via Certified Mail Return Receipt Requested to the Office of the Attorney General" and in the same paragraph contradicts himself and alleges that it was not served by certified mail, return receipt requested but "was received, via regular mail." This contradiction would present a problem on this motion were it not for claimant's admission in paragraph "4" of his "Rebuttal Response" in which he says: "My claim was mailed via regular mail due to insufficient funds in my account and my status of being indigent." Such admission allows for summary disposition on the issue pursuant to section 11 (a) of the Court of Claims Act.

Section 11 (a) provides that, except in appropriation cases, a copy of the claim "shall be served personally or by certified mail, return receipt requested, upon the attorney general within the times hereinbefore provided for filing with the clerk of the court." The same service requirements apply to a notice of intention to file a claim. Proper service pursuant to § 11 (a) has been determined to be a jurisdictional prerequisite to the maintenance of a claim and must be construed strictly (Phillips v State of New York, 237 AD2d 590; Cannon v State of New York, 163 Misc 2d 623).

The claimant's failure to serve the notice of intention to file a claim and/or the claim itself either personally or by certified mail, return receipt requested requires dismissal of the claim (Philippe v State of New York, 248 AD2d 827; Bogle v State of New York, 175 AD2d 493).


January 3, 2001
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 September 29, 2000;
  2. Affirmation of G. Lawrence Dillon dated September 29, 2000, with exhibits.
  3. Undated rebuttal response to pre-answer motion.