New York State Court of Claims

New York State Court of Claims

CHRISTIAN v. THE STATE OF NEW YORK, #2001-009-024, Claim No. 103806, Motion No. M-63207


Defendant's motion to dismiss based upon improper service and also upon a failure to comply with Court of Claims Act, Section 10(9) was 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):

Nicholas V. Midey, Jr.
Claimant's attorney:
Defendant's attorney:
Attorney General
BY: Joel L. Marmelstein, Esq.,
Assistant Attorney GeneralOf Counsel.
Third-party defendant's attorney:

Signature date:
May 11, 2001

Official citation:

Appellate results:

See also (multicaptioned case)


Defendant has brought this motion seeking an order dismissing the claim.

The following papers were considered by the Court in connection with this motion:
Notice of Motion, Affirmation, with Exhibits 1,2

Filed Papers: Claim, Answer

In this claim, which was filed February 9, 2001, claimant seeks damages for certain items of personal property which were allegedly lost when claimant was transferred within Gouverneur Correctional Facility, and then subsequently transferred to Attica Correctional Facility.

Court of Claims Act, § 11(a) requires that a claim must be served upon the Attorney General either personally or by certified mail, return receipt requested. The service and filing requirements of the Court of Claims Act are jurisdictional prerequisites to the institution and maintenance of a claim against the State, and therefore must be strictly construed (Finnerty v New York State Thruway Authority, 75 NY2d 721; Byrne v State of New York, 104 AD2d 782, lv denied 64 NY2d 607).

In this claim, defendant asserts that the claim was served upon the Attorney General by regular, first class mail, on February 5, 2001. A copy of the envelope in which the claim was served has been attached to defendant's moving papers (see Exhibit C) which shows postage of $.76 affixed thereto, which amount is insufficient for the costs of certified mail, return receipt requested. Furthermore, there is no indication on the envelope to establish that the claim was served by certified mail, return receipt requested, as required by statute.

Accordingly, this Court finds that the claim which was served on February 5, 2001 was not served in accordance with the requirements of Court of Claims Act, § 11(a). This claim must therefore be dismissed based upon improper service of the claim.

Defendant also seeks to dismiss this claim based upon claimant's non-compliance with Court of Claims Act, § 10(9). This section provides that the "claim of any inmate in the custody of the department of correctional services for recovery of damages for injury to or loss of personal property may not be filed unless and until the inmate has exhausted the personal property claims administrative remedy, established for inmates by the department." After the inmate has exhausted such administrative remedy, the claim must then be served and filed within 120 days.

Defendant asserts that claimant did not exhaust his administrative remedies prior to serving and filing the instant claim. A copy of the "Inmate Claim Form" has been included as an exhibit to the motion papers (Exhibit D) and there is no indication set forth thereon that claimant proceeded with an appeal of the initial determination denying his claim. Based upon this exhibit, as well as the fact that claimant has not argued otherwise (and in fact, has not responded to this motion), the Court finds that claimant did not exhaust his administrative remedies prior to the service and filing of his claim, and therefore did not comply with the requirements of Court of Claims Act, § 10(9).

Accordingly, for the reasons set forth above, it is

ORDERED, that Motion No. M-63207 is hereby GRANTED; and it is further

ORDERED, that Claim No. 103806 is hereby DISMISSED.

May 11, 2001
Syracuse, New York

Judge of the Court of Claims