New York State Court of Claims

New York State Court of Claims

REDD v. THE STATE OF NEW YORK, #2000-019-518, Claim No. 102065, Motion No. M-61516


State's motion to dismiss granted due to Claimant's failure to comply with filing and service requirements of Court of Claims Act 10 and 11

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:
Defendant's attorney:
BY: Eileen E. Bryant, Assistant Attorney General, of counsel
Third-party defendant's attorney:

Signature date:
May 30, 2000

Official citation:

Appellate results:

See also (multicaptioned case)


In lieu of submitting an Answer, the defendant State of New York (hereinafter "State") moves to dismiss pursuant to CPLR 3211 on the grounds that this Court lacks jurisdiction. Claimant has submitted a letter dated April 17, 2000 in opposition to this motion.

The Court has considered the following papers in connection with this motion:
  1. Claim, filed March 6, 2000.
  2. Notice of Motion No. M-61516, dated April 12, 2000 and filed April 13, 2000.
  3. Affirmation of Eileen E. Bryant, AAG, in support of motion, dated April 12, 2000. with attached exhibits.
  4. Letter from Kevin Redd to David B. Klingaman, Chief Clerk, dated April 17, 2000 and received April 21, 2000.
This claim sounds in bailment and is comprised of two separate incidents. First, Claimant alleges he was placed in the special housing unit ("SHU") on July 22, 1999 and noticed his wedding band was missing when he inventoried his property on July 24, 1999. At that time, Claimant alleges he completed an inventory sheet, known as an I-64 property form. Next, Claimant alleges that after he was released from SHU on October 19, 1999 he discovered as missing a number of the items he had listed on his I-64 in July.

By way of this motion, the State represents that it was never served with any notices of intention. As a result, the State contends this Claim is untimely since it was served and filed more than ninety days after accrual. It is a fundamental principle of practice in the Court of Claims that the filing and service requirements contained in Court of Claims Act 10 and 11 (hereinafter "CCA") are jurisdictional in nature and must be strictly construed. (Finnerty v New York State Thruway Auth., 75 NY2d 721, 722-723). Moreover, it is Claimant's burden to establish proper and timely compliance. (Boudreau v Ivanov, 154 AD2d 638, 639).

These causes of action would have accrued, at the earliest, on July 22, 1999 and, at the latest, on October 19, 1999, respectively. The Claim was both served upon the attorney general's office by certified mail, return receipt requested, and filed in the Office of the Clerk on March 6, 2000. As such, the State is correct that the Claim served and filed on March 6, 2000 was untimely if notices of intention were not properly and timely served. However, the Claim itself alleges notices of intention were served on the attorney general on September 9, 1999 and November 15, 1999 which, if true, would have been timely and would make the subsequently filed and served Claim timely as well. However, the State represents it was never served with any notices of intention. In his letter response, Claimant states, in pertinent part, as follows:
I do have in my possessions my return receipt for certified mail dated Nov 15, 1999 for the claim against Shawangunk correctional facility.

The notice of intention was filed on Nov 15, 1999 and received by your office [the Clerk of the Court] on Nov 18, 1999. The claim itself was filed on March 2, 2000 and received by your office [the Clerk of the Court] on March 6, 2000....

(Claimant's letter dated April 17, 2000). Setting aside the issue of Claimant's failure to respond by sworn affidavit and reviewing Claimant's letter response, the Court notes it contains no assertion that one or both notices of intention were timely served on the attorney general's office. In short, Claimant has not come forward with an affidavit of service or other acceptable proof demonstrating his proper and timely service of these notices of intentions. Consequently, Claimant has failed to meet his burden of demonstrating compliance with CCA 10 and 11 and, as such, this Claim must be dismissed. However, Claimant may not be without a remedy since it appears he is still within the allowable time limits to pursue permission to late file pursuant to CCA 10 (6).

Accordingly, for the reasons stated above, it is ordered that the State's motion to dismiss, Motion No. M-61516, is GRANTED and Claim No. 102065 is DISMISSED.

May 30, 2000
Binghamton, New York

Judge of the Court of Claims