New York State Court of Claims

New York State Court of Claims

HOLLOWAY v. THE STATE OF NEW YORK, #2001-013-011, Claim No. 99293, Motion Nos. M-63235, CM-63369


An inmate claim that was delivered to prison officials for mailing within 90 days of the claim's accrual but was not received by the Attorney General until more than 90 days had passed is untimely. The "mailbox rule," which is recognized in a number of Federal courts, is not applicable in New York. Claimant's motion to strike, which is construed to be a motion for permission to file a late claim, 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):
Claimant's attorney:
Defendant's attorney:
Attorney General of the State of New York
BY: WENDY E. MORCIO, Esq.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
July 30 , 2001

Official citation:

Appellate results:

See also (multicaptioned case)


On May 16, 2001, the following papers were read on Defendant's motion for an order of dismissal and on Claimant's cross-motion to strike:
1. Notice of Motion and Supporting Affidavit of Wendy E. Morcio, Esq. ("Morcio Affidavit"), with annexed Exhibits

2. Notice of Cross-motion and Supporting Affidavit of Ronald Holloway, pro se ("Holloway Affidavit")

3. Reply Affidavit of Wendy E. Morcio, Esq. ("Morcio Reply Affidavit")

4. Reply Affidavit of Ronald Holloway, pro se ("Holloway Reply Affidavit")

5. Filed Papers: Claim, Answer

This claim arose on August 11, 1998, when Claimant suffered personal injuries as a result of falling in a shower at Lakeview Correctional Facility. It is alleged that the State is responsible for the injuries because of its negligence in failing to provide a rubber mat for the shower. The claim was filed on November 13, 1998, and in its answer, Defendant raised the following as its fifth affirmative defense:
Upon information and belief, this Court lacks jurisdiction because of Claimant's failure to timely and properly serve a Claim and commence an action as required by Sections 9, 10, and 11 of the Court of Claims Act. Claimant failed to timely serve a Notice of Intention to File Claim or a Claim within ninety (90) days of the alleged incident of August 11, 1998. No Notice of Intention was served, and the Claim was served on November 13, 1998, more than ninety (90) days after the alleged incident. Court of Claims Act , Section 11, requires that service on the State of New York be made personally on the Attorney General or by Certified Mail, Return Receipt Requested, to the Attorney General.
This language sets forth the affirmative defense of untimeliness and with sufficient particularity to satisfy the requirement of Section 11(c) of the Court of Claims Act, as it provides "adequate and clear notice to any reasonable person that a defect is claimed to exist and that it may at some point be used as the basis of a motion to dismiss" (Sinacore v State of New York, 176 Misc 2d 1, 6; see also, Fowles v State of New York, 152 Misc 2d 837) and refers both to the relevant statute and to the requirement that should have been met (see, Smith v State of New York, Ct Cl, July 20, 1993 [Claim No. 85799 - Motion No. M-48029], Benza, J.).

Because failure to comply with the time and manner of service requirements in Sections 10 and 11 of the Court of Claims Act is a fatal jurisdictional defect and deprives this Court of the power to hear the claim (Dreger v New York State Thruway Auth., 81 NY2d 721, 721; Bogel v State of New York, 175 AD2d 493), Defendant has now moved for an order dismissing the claim. In opposition to the motion (and in support of his motion to "strike" the motion to dismiss), Claimant asserts that the claim was timely because it was placed in the hands of prison officials for mailing by certified mail, return receipt requested, on November 9, 1998, within 90 days of the date that the claim accrued. Claimant states that he had "no other choice than to place his legal documents in the hands of prison officials in order to be mailed" (Holloway Affidavit, ¶9).

Section 11(a)(i) of the Court of Claims Act provides that "[s]ervice by certified mail, return receipt requested, upon the attorney general shall not be complete until the claim or notice of intention is received in the office of the attorney general" (emphasis supplied). The cases cited by Claimant in support of his argument that it is the date of mailing, not receipt, which should be considered are Federal actions from the several Federal courts that have adopted the "mailbox rule." Under that rule, service of jurisdictional documents, such as complaints or notices of appeal, is complete when they are turned over by the inmate to those prison officials responsible for placing them in the mail (see, Houston v Lack, 487 US 266; Dory v Ryan, 999 F2d 679). In Espinal v State of New York (159 Misc 2d 1051), former Judge (now Justice) Louis C. Benza considered the issue and declined to adopt the "mailbox rule" for New York practice, specifically for Court of Claims practice. I find his reasoning to be persuasive and reach the same conclusion. Consequently, Defendant's motion to dismiss the claim will be granted.

In Espinal (supra), Judge Benza noted that one of the several protections available to litigants in this Court, protections that made adoption of the "mailbox rule" unnecessary, was the availability of a Court of Claims Act §10(6) motion for permission to file an untimely claim (159 Misc 2d at 1055). In that action, claimant's counsel had included a discussion of the factors relevant to such a motion, and Judge Benza elected to construe the responsive submission containing this information as such a motion. In the instant case, Claimant has filed a cross-motion and, in his submissions in support of that cross-motion, has addressed a number of the factors relevant to a motion for permission to late file. Although the motion is inartfully worded, I will follow the example of Espinal (159 Misc 2d 1051) and construe it to be a motion for relief under Section 10(6). I note as one of my principal reasons for doing this that Claimant would not have time to receive this Decision and Order and then make a more formal motion before the CPLR Article 2 statute of limitations expires on August 11, 2001.

Claimant's cross-motion was filed within three years after the proposed claim arose, and as in a like action against a citizen would not be barred by the applicable statute of limitations (CPLR 214). As demonstrated above, Claimant believed that he had initiated this action in a timely fashion because he considered the date on which he mailed the claim to be the date of service and filing. Ignorance of the law does not provide an acceptable excuse for failure to comply with the statutory filing requirements (see, e.g., Erca v State of New York, 51 AD2d 611, affd 42 NY2d 854; Block v New York State Thruway Auth., 69 AD2d 930), but Claimant's actions, together with his full compliance with the requirements relating to manner of service, demonstrate that he made a good-faith effort to take the necessary steps.

Claimant asserts that the unusual condition of the shower in question, which resulted in the accumulation of water, was known to the State and that extra bath towels were issued because of that condition (Holloway Affidavit, ¶11). It appears, therefore, that Defendant had at least some notice of the essential facts constituting the claim. In addition, while the claim was not filed or served within the specific time limitations set forth in Court of Claims Act §10(3), it arrived only days after that time period, and thus the State was fully aware of both Claimant's intention to sue and the facts underlying his suit before significant prejudice could attach. Defendant can hardly complain of staleness when it receives so closely the notification to which it is entitled by statute (see, Nyberg v State of New York, 154 Misc 2d 199; Matter of Crawford v City University of New York, 131 Misc 2d 1013).

Claimant does not have an available remedy against any party other than the State, and he has succeeded, at least at a minimal level, in establishing that his cause of action is not patently groundless, frivolous, or legally defective and that there is reasonable cause to believe that a valid cause of action exists (Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1). I conclude, therefore, that Claimant is entitled to late file a claim identical in content to Claim No. 99293 and direct that he do so in conformance with the requirements of Court of Claims Act §10 and §11 within sixty (60) days after this order is filed.

Defendant's motion to dismiss the claim is granted, Claim No. 99293 is dismissed, and Claimant's cross-motion, which is construed as a motion for permission to late file pursuant to Court of Claims Act §10(6), is granted.

July 30 , 2001
Rochester, New York

Judge of the Court of Claims