New York State Court of Claims

New York State Court of Claims

CHATIN V. THE STATE OF NEW YORK, #2001-013-023, Claim No. 98835, Motion No. M-63664


Claimant had the opportunity, under governing regulations of the Department of Correctional Services (7 NYCRR 721.3), to obtain certified mail, return receipt requested service and, because he did not take advantage of this opportunity, his claim, which was served by regular mail, is dismissed.

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: WILLIAM D. LONERGAN, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
October , 2001

Official citation:

Appellate results:

See also (multicaptioned case)


On August 15, 2001, the following papers were read on Defendant's motion for summary judgment in its favor:
1. Notice of Motion and Supporting Affidavit of William D. Lonergan, Esq. ("Lonergan Affidavit"), with Annexed Exhibits

2. "Motion in Opposition to Summary Judgment" of Clay Chatin, pro se ("Chatin Opposition")

3. Response Affidavit of William D. Lonergan, Esq. ("Lonergan Response Affidavit")

4. Reply Letter of Clay Chatin, pro se ("Chatin Reply Letter")

5. Filed Papers: Claim; Answer

This claim arose on April 7, 1998, when Claimant, an inmate at Wende Correctional Facility, was assigned to a double-bunking cell. Claimant is a non-smoker who states that he suffers from asthma, and the other inmate assigned to the cell was a smoker. Claimant alleges that this housing arrangement violates the governing rules and regulations of the Department of Correctional Services (DOCS). Claimant states that he served a Notice of Intention on May 20, 1998 (Claim, ¶5), and the claim was filed on August 21, 1998.

In its Answer, Defendant raised the defense of improper service with sufficient particularity to satisfy the requirement of Court of Claims Act §11(c).[1] Defendant now moves for summary judgment dismissing this claim on the ground that it is jurisdictionally defective. Because there is a question as to whether the defense of untimeliness was preserved with sufficient particularity (see footnote 1), I will consider only the issue of the manner of service.

Defendant alleged that both the Notice of Intention and the claim were served by regular mail, rather than certified mail, return receipt requested, as required by Section 11(a) of the Court of Claims Act. The motion papers do not contain a photocopy of the envelopes in which these documents were received to establish the truth of this allegation, but Claimant concedes that he did, in fact, use regular mail service (Chatin Opposition, ¶14). He asserts, however, that he did not have sufficient money in his inmate account and had to make use of his free postage allowance (id.). He further asserts that he could not take advantage of the $20.00 advance available because his free postage allowance had not been exhausted (id., ¶15) and that "no facility will provide funds for certified mail unless that individual could provide a court order for the facility to do so" (Chatin Reply Letter).

The relevant portion of 7 NYCRR 721.3(a)(3)(ii) provides that inmates shall receive a weekly free postage allowance sufficient to send five domestic first class, one ounce letters; that allowance is to be used to send privileged correspondence.[2] The allowance may not be used to pay for special handling charges, such as certified mail, return receipt requested "unless such mail services are required by statute, court rule or court order" (7 NYCRR 721.3(a)(3)(ii)(a). This regulation also provides that an inmate who has insufficient funds may request an advance of up to $20.00 to pay for legal mail, as long as any balance of the free weekly allowance is applied to the legal mail postage costs. Advances, like the free mail allowance, may not be used for special handling services "unless required by a statute, court rule or court order." Advances exceeding the $20.00 limit are approved only if the inmate can provide justification (such as establishing that a statute or other legal requirement directs that the mail must be sent prior to the next week's free allowance), but the regulation also provides that requests for legal mail advances can be denied only after consultation with DOCS counsel.

Consequently, Claimant's understanding of his ability to comply with the service requirements of the Court of Claims Act is in error. He did not have to exhaust his weekly allowance for privileged correspondence in order to request an advance, and the cost of special handling mail service would have been paid for or, if necessary, advanced, because such service is required by statute (Court of Claims Act §11[a]). Because it would have been possible for Claimant to comply with the service requirements set forth in the Court of Claims Act, his failure to do so deprives me of the jurisdiction to hear the claim.

Defendant's motion is granted, and Claim No. 98835 is dismissed.

October , 2001
Rochester, New York

Judge of the Court of Claims

  1. [1]Defendant's sixth affirmative defense reads as follows: "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 April 7, 1998. The Notice of Intention to File Claims was served on May 14, 1998 and the Claim was served on October 21, 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. Claimant served both the Notice of Intention to File a Claim and the Claim by Regular Mail.
Although this statement does not identify the source of the statutory requirement that service be made within 90 days (which is Court of Claims Act §10[3]), it does adequately identify the source of the requirements regarding manner of service (see, Sinacore v State of New York, 176 Misc 2d 1, 6; Fowles v State of New York, 152 Misc 2d 837).
  1. [2]"Privileged correspondence" is correspondence addressed by an inmate to, among others, governmental and public officials, departments or agencies, attorneys, physicians and others (7 NYCRR 721.2).