This claim, by a
prisoner, alleges that defendant's employees at Sing Sing
Correctional Facility (hereinafter Sing Sing): (1) issued a false misbehavior
report against him; (2) that claimant was found guilty of the charges and (3)
$88.33 was removed from his inmate account as a result.
At the commencement of this trial at Sing Sing on August 10, 2000, the State
made a motion to dismiss the claim based upon the State's first defense raised
in its Verified Answer that "the Court lacks subject matter jurisdiction over
the cause of action in that the claimant did not serve a copy of the claim on
the Attorney General by certified mail, return receipt requested or personal
service as required by Section 11 of the Court of Claims Act."
Pursuant to Court of Claims Act § 10 (3), claimant had ninety (90) days
from the date of the claim's accrual to either file a claim or serve a notice of
Court of Claims § 11 (a) requires that the claim and notice of intention
be served upon the Attorney General, either personally or by certified mail,
return receipt requested, within the time period provided for filing with the
Clerk of the Court. The failure to properly serve the Attorney General gives
rise to a defect in jurisdiction (
Philippe v State of New York
, 248 AD2d 827). In the case at bar, the
claim was filed with the Court on July 29, 1996 and served upon the Attorney
General by regular mail. At trial, the Assistant Attorney General submitted the
envelope that the claim was received in. The envelope was postmarked July 25,
1996 at Auburn, New York and contained only first class postage. There is no
certified mail sticker or return receipt on the envelope. After inquiry by the
Court, claimant was unable to produce any proof (i.e. by way of disbursement
form or inmate account statement) to establish that he mailed the claim to the
Attorney General by certified mail, return receipt requested or, as he asserted,
that he affirmatively requested the DOCS to do so.
Court of Claims Act § 11 (c) provides that a defense based upon a failure
to comply with the service requirement of § 11 (a) is waived unless raised
with particularity either by motion to dismiss prior to service of the
responsive pleading or in the responsive pleading itself. Here, defendant, in
its Answer, raised as its first defense that the claim was improperly served, as
stated above. As required by Court of Claims Act § 11 (c), the Court finds
and concludes that the defense was stated with particularity (
Villa v State of New York
, 228 AD2d 930).
Based upon the foregoing, the defendant's oral motion made at trial is GRANTED
and the claim is dismissed as the claim was not properly served upon the
defendant in compliance with Court of Claims Act § 11 (a).
Though we need not decide the merits of this case, the Court notes that since
the claimant was convicted of the disciplinary infraction from which this claim
arose, claimant had the option to challenge his conviction by administrative
appeal and Article 78 proceeding in Supreme Court. Since he chose not to do so,
the conviction stands and would have been persuasive as to claimant's
culpability and, therefore, the propriety of defendant's actions and the
immunity attaching thereto (
Arteaga v State of New York
, 72 NY2d 212).
Let judgment be entered accordingly.