New York State Court of Claims

New York State Court of Claims

SMITH v. THE STATE OF NEW YORK, #2000-029-010, Claim No. 94456


Prisoner - claim dismissed - improperly served on defendant; was served by regular mail, not certified, return receipt requested.

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:
Michael Smith, Pro Se
Defendant's attorney:
Hon. Eliot Spitzer
Attorney General of the State of New YorkBy: Elyse Angelico, Esq., Assistant Attorney General
Third-party defendant's attorney:

Signature date:
August 16, 2000
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


This claim, by a
pro se 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 intention.

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.

August 16, 2000
White Plains, New York

Judge of the Court of Claims