New York State Court of Claims

New York State Court of Claims

CAPELLAN v. THE STATE OF NEW YORK, #2000-015-525, Claim No. 97903


Claim by inmate to recover damages for personal injury resulting from attack by fellow inmate dismissed for lack of jurisdiction since claim was served by regular mail in contravention of service requirement of Court of Claims Act § 11(a).

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):

Cross-motion number(s):

Claimant's attorney:
Anthony Capellan, Pro Se
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Timothy P. Mulvey, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
December 20, 2000
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)

Defendant moved at trial on October 16, 2000 to dismiss the claim on the ground that the Court lacks jurisdiction over the defendant due to claimant's failure to properly serve the claim. Decision was reserved and the motion will now be addressed.

The claim seeks to recover for personal injuries sustained on October 5, 1997 when claimant, an inmate at Marcy Correctional Facility, Marcy, New York, was attacked by another inmate. Claimant sustained a laceration to the back of his head which left a three inch scar.

The answer, filed and served on behalf of the defendant, states as a third affirmative defense that the claim was served by regular mail and the Court is without jurisdiction to hear the claim. At the trial Assistant Attorney General Timothy P. Mulvey offered as Exhibit A a claim verified by the claimant on February 12, 1998, an affidavit of service of said claim sworn to on the same date, claimant's poor person application (not relevant to the instant motion) and an envelope bearing claimant's name and prisoner number in the return address area and addressed to the Attorney General's Office, Department of Law, State Capitol, Albany, New York 12224. The envelope bears a Rome, New York postmark dated February 26, 1998 and shows postage paid in the amount of $.78. Both the claim itself and the envelope are date stamped showing each was received by the New York State Department of Law Claims Bureau on February 27, 1998 and received by the New York State Department of Law Bureau of Claims and Litigation, Syracuse Office on March 6, 1998. The envelope contains no markings to indicate that the claim was served by certified mail, return receipt requested.

Claimant alleged that he was notified by "the district attorney that it wasn't supposed to be mailed by regular mail. I mailed another one certified and we also give it to the judge."

Assistant Attorney General Mulvey acknowledged that the file contained a notice of intention to file a claim which had been served by certified mail on December 22, 1997 but denied receipt of a properly served claim.

Claimant offered no evidence to refute the allegation of improper service.

It is well established that "[t]he notice of claim requirements in Court of Claims Act § § 10 and 11 are jurisdictional prerequisites to the maintenance of a claim and must be strictly construed" (
Phillips v State of New York, 237 AD2d 590, 591; Cannon v State of New York , 163 Misc 2d 623). Service of the claim and/or notice of intention to file a claim upon the Attorney General by regular mail, as evidenced by a copy of the mailing envelope used by the claimant, rather than personally or by certified mail, return receipt requested is insufficient to acquire jurisdiction over the State requiring the granting of the dismissal motion (see, Philippe v State of New York, 248 AD2d 827).
Since claimant failed to offer any evidence at trial to contradict the defendant's proof that the claim was served by regular mail, this Court must dismiss the claim for lack of jurisdiction.

Let judgment be entered accordingly.

December 20, 2000
Saratoga Springs, New York

Judge of the Court of Claims