New York State Court of Claims

New York State Court of Claims

CAMPO v. THE STATE OF NEW YORK, #2001-015-131, Claim No. 103485, Motion Nos. M-62905, M-63086


Synopsis


Inmate claim for alleged assault by DOCS personnel dismissed for lack of jurisdiction based upon ordinary mail service of notice of intention and untimely service of claim itself.

Case Information

UID:
2001-015-131
Claimant(s):
TYRONE CAMPO
Claimant short name:
CAMPO
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
103485
Motion number(s):
M-62905, M-63086
Cross-motion number(s):

Judge:
FRANCIS T. COLLINS
Claimant's attorney:
Tyrone Campo, Pro Se
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: G. Lawrence Dillon, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
March 19, 2001
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The defendant's motion pursuant to CPLR 3211 (a) (7) and (8) dismissing the claim for lack of jurisdiction is granted. The claimant seeks to recover money damages for an assault allegedly committed by four unnamed correction officers on May 2, 2000 as well as an alleged assault by two unnamed correction officers occurring on May 4, 2000 at Oneida Correctional Facility. Claimant served a notice of intention to file a claim which was received by the Attorney General on August 4, 2000 and the claim was filed on December 6, 2000. Claimant failed to provide an affidavit of service of the claim upon the Attorney General but the claim, which was served by certified mail, was received on December 15, 2000.

The defendant has moved to dismiss the claim as untimely pursuant to Court of Claims Act § 10 (3-b). Defendant alleges that untimely service of this claim seeking to recover for an intentional tort deprives the Court of jurisdiction and requires that the claim be dismissed.

The defendant alleges that this claim is untimely because claimant served a notice of intention to file a claim upon the Attorney General on or about August 4, 2000 which was more than 90 days after the dates of the alleged assaults and because the notice of intention was served by ordinary mail and, therefore, failed to comply with the method of service requirements contained in Court of Claims Act § 11 (a). Furthermore, since the notice of intention to file a claim was neither timely nor properly served, claimant is not entitled to the one year extension for service of the claim permitted by section 10 (3-b) of the Court of Claims Act. As a result, claimant's service of the claim on or about December 15, 2000, even though effected by certified mail, return receipt requested, was untimely as not having been served within 90 days of the claim's accrual on May 2, 2000 and/or May 4, 2000. In support of this uncontested motion, the Attorney General has offered photocopies of the envelopes used by the claimant to serve the notice of intention and the claim. The former bears a postage meter stamp for Rome, New York dated August 3, 2000 showing postage paid in the amount of $.33 which was the rate then applicable for ordinary mail weighing up to and including one ounce. While the envelope bears the words "LEGAL MAIL," it does not indicate that it was sent certified mail/return receipt requested. The latter envelope, by contrast, is postmarked Eastern Correctional Facility, December 13, 2000 and indicates postage paid in the amount of $3.20. It further bears a certification number and the words "RETURN RECEIPT REQUESTED."

The proof offered on the motion is sufficient to demonstrate that the notice of intention to file a claim was not served in compliance with the service requirements of section 11 (a) of the Court of Claims Act and that the claim was untimely in that it was not served within 90 days of accrual thus depriving the Court of jurisdiction and requiring the dismissal of the claim. Subdivision 3-b of section 10 of the Court of Claims Act provides in relevant part:
A claim to recover damages for . . . personal injuries caused by the intentional tort of an officer or employee of the state while acting as such officer or employee, . . . shall be filed and served upon the attorney general within ninety days after the accrual of such claim, unless the claimant shall within such time serve upon the attorney general a written notice of intention to file a claim therefor, in which event the claim shall be filed and served upon the attorney general within one year after the accrual of such claim.
In relevant part section 11 of the Court of Claims Act provides
a.(i) The claim shall be filed with the clerk of the court; and, except in the case of a claim for the appropriation by the state of lands, a copy shall be served personally or by certified mail, return receipt requested, upon the attorney general within the times hereinbefore provided for filing with the clerk of the court. Any notice of intention shall be served personally or by certified mail, return receipt requested, upon the attorney general within the times hereinbefore provided for service upon the attorney general. Service 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. Personal service upon the attorney general shall be made in the same manner as described in section three hundred seven of the civil practice law and rules.
It is well established that as part of the State's waiver of immunity the time requirements set forth in section 10 of the Court of Claims Act are more than Statutes of Limitation. Indeed, they have been found to be conditions precedent to the commencement and maintenance of a claim against the State and are to be strictly construed (Pelnick v State of New York, 171 AD2d 734). The Court of Appeals has held that the limitations contained in Article II of the Court of Claims Act represent an integral part of the waiver of immunity, the failure to comply with which deprives this Court of jurisdiction to entertain the claim (Lichtenstein v State of New York, 93 NY2d 911, Dreger v New York State Thruway Auth., 81 NY2d 721).

Failure to file this claim within the time permitted in section 10 (3-b) of the Act is a fatal jurisdictional defect which entitles the State to dismissal of the claim (Philippe v State of New York, 248 AD2d 827; Collado v State of New York, 207 AD2d 936). So too, the methods of service prescribed by section 11 of the Court of Claims Act must also be strictly followed. When a claimant chooses to serve a notice of intention to file a claim he must do so in the manner prescribed by section 11 or he forfeits the additional time granted by section 10 (3-b) for the filing of the claim itself. Here claimant's failure to effect service of the notice of intention to file a claim upon the Attorney General by personal service or by certified mail, return receipt requested renders the filing and service of the claim itself untimely and requires dismissal of the claim (Bogel v State of New York, 175 AD2d 493; see also, Hodge v State of New York, 213 AD2d 766).

In light of the dismissal of this claim, claimant's motion, M-62905, for permission to proceed as a poor person which was returnable on February 7, 2001 is denied as moot.


March 19, 2001
Saratoga Springs, New York

HON. FRANCIS T. COLLINS
Judge of the Court of Claims


The Court considered the following papers:
  1. Notice of motion dated October 16, 2000;
  2. Notice of motion dated February 13, 2001;
  3. Affirmation of G. Lawrence Dillon, dated February 13, 2001, with exhibits.