New York State Court of Claims

New York State Court of Claims

RUSSELL v. THE STATE OF NEW YORK, #2001-005-518, Claim No. 102982, Motion No. M-62484


Defendant's motion to dismiss the claim per CPLR §3211 is granted.

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):

Donald J. Corbett, Jr.
Claimant's attorney:
David RussellPro Se
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Timothy P. Mulvey, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
May 29, 2001

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers, numbered 1 to 4, were read on motion by Defendant for dismissal of the claim:

1, 2 Notice of Motion, Affirmation and Exhibit Annexed
  1. Opposing Affidavit (denominated Answer) and Exhibits Annexed
  2. Filed Papers: Claim
Upon the foregoing papers, this motion is granted.

The Defendant has moved to dismiss the claim herein, in lieu of an answer, on two grounds. Initially it is alleged that the claim was served by certified mail only, without the requisite return receipt requested, in contravention of Court of Claims Act §11(a), and thus that the Court lacks jurisdiction. Second, Defendant alleges that the claim should be dismissed for the failure to state a cause of action.

According to the motion papers the original claim was served on August 22, 2000. Claimant avers that after he became aware of the service deficiency by means of the instant motion, he had 120 days to overcome the same, although he offers no statutory or case law support for this assertion. Nonetheless, he urges that he has overcome the improper service by subsequently serving another copy of the claim by certified mail, return receipt requested, and has appended the Certified Mail Receipt purporting to show such mailing on October 17, 2000, albeit without showing or establishing the date of service of the claim after such mailing, and without providing a copy showing the actual date of service. In Paragraph 6 of the instant claim, Claimant alleges that he served a Notice of Intention to file a claim upon the Defendant on August 16, 2000. Accordingly, if he indeed "re-served" his claim by certified mail, return receipt requested, merely some two months after allegedly serving the Notice of Intention, then the "re-service" of the claim purportedly by the required method would be timely. Thus to the extent that the motion seeks dismissal due to improper service of the claim, it appears that Claimant has timely remedied such improper service, and that aspect of the motion is denied. It should be noted here that the Defendant's motion did not raise jurisdictional objections to the purported service of the Notice of Intention on August 16, 2000, but only as to the claim, and thus as to objections to the manner of service of the Notice of Intention, any such objection would be deemed waived (Court of Claims Act §11[c]; Knight v State of New York, 177 Misc 2d 181; also see, Adebambo v State of New York, 181 Misc 2d 181).

The second aspect of the Defendant's motion addresses the substance of the claim. I must therefore examine the claim and its allegations. In Paragraph 3 Claimant recites a litany of events, and in Paragraph 4 suggests that the failure of the staff at Cayuga Correctional Facility "to recognize Claimant's mental and physical needs as well as the continuing problems with his mail and general treatment in general has contributed to [his] pain and suffer, emotional stress, sever strain and anxiety" over a six month period and was still continuing as of the preparation of the claim. Paragraph 3, nearly eight hand-written pages, can best be described as a chronological recitation of problems, starting with issues related to the delivery of Claimant's legal mail, copies of documents, FOIL (Freedom of Information Law) requests, filing of grievances and the periods of time it took for responses, as well as alleged returns of mailings due to insufficient postage or because they supposedly exceeded the free mailing limit of five pieces of legal mail per week. Paragraph 3 continues as Claimant suggests that his mail may have been tampered with, although he has no specific allegations thereof, merely an apprehension. Claimant alleges that all these problems caused him stress and emotional strain.

He also complains in Paragraph 3 of experiencing "other humiliation" by the staff at Cayuga Correctional Facility, when his handcuffs were padlocked to his waist chain and he had to pick up a twenty-five pound draft bag and pick up a tag that had fallen therefrom, a "virtually impossible" task, which he asserts was done solely to humiliate and embarrass him. Claimant also raises issues with his assignment to double-bunking, stating that he already had attempted to kill himself as a result of having to double-bunk, and that this issue contributed to several nervous breakdowns, including one on June 25, 2000. Claimant describes what he characterizes as his mental illness, psychiatric referrals since 1990-1991 at Kings County Hospital, as well as psychiatric involvement while he has been incarcerated.

I recite the general nature of all these complaints, all of which are contained in the running narrative of Paragraph 3 of the claim, to reflect their broad range of allegations and their general nature, as opposed to distinct causes of action. Standing alone, none of these recitations articulate cognizable causes of action in this court, and certainly they are not separately stated and numbered (CPLR 3014). Indeed, the best that might be inferred, and it would be a stretch, is the intentional infliction of emotional distress, a cause of action which is not cognizable against the State of New York as a matter of public policy (Wheeler v State of New York, 104 AD2d 496; De Lesline v State of New York, 91 AD2d 785, appeal denied, 58 NY2d 610).

Accordingly, the motion to dismiss the claim for the failure to state a cause of action is granted, and the claim must be, and hereby is, dismissed.

May 29, 2001
Rochester, New York

Judge of the Court of Claims