New York State Court of Claims

New York State Court of Claims

ODELL v. THE STATE OF NEW YORK, #2001-015-149, Claim No. 103316, Motion Nos. M-63084, M-63085


Synopsis


Inmate claim seeking to recover for loss or theft of personal property dismissed for lack of jurisdiction arising from service of notice of intention to file claim and clam itself by regular mail and arising from failure to exhaust administrative remedy pursuant to Court of Claims Act § 10 (a). Claimant's motion to amend jurisdictionally defective claim is denied.

Case Information

UID:
2001-015-149
Claimant(s):
SAMUEL ODELL
Claimant short name:
ODELL
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
103316
Motion number(s):
M-63084, M-63085
Cross-motion number(s):

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

Signature date:
May 8, 2001
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Defendant's motion to dismiss the claim on the ground that the Court lacks jurisdiction is granted. Claimant's motion for an order allowing the filing and service of an amended claim is denied. The claim seeks to recover the reasonable value of certain personal property belonging to claimant which allegedly was misplaced and/or lost by DOCS personnel while claimant was in the Special Housing Unit (SHU) at Mid-State Correctional Facility, Marcy, New York. Claimant alleges that he signed an I-64 Form (personal property receipt) for three draft bags of property prior to entering the SHU and discovered that one of the three bags was missing on August 16, 2000.

Defendant's motion to dismiss the claim for lack of jurisdiction is based primarily upon the manner in which the claimant served a notice of intention to file a claim and the claim itself. Defendant alleges that both the notice of intention and the claim were served by regular mail and that the manner of service defense was raised with particularity in the "first" and "second" affirmative defenses set forth in the defendant's answer[1]. Defendant further asserts that the claim fails to state a cause of action in that it does not state the amount of damages sought as required by 22 NYCRR 206.6 and Court of Claims Act § 11. Additionally, defendant argues that this claim for loss of personal property fails to specify whether the claimant was successful in pursuing his available administrative remedy prior to the initiation of the claim as required by Court of Claims Act § 10 (9) which became effective on December 7, 1999.

The claimant did not oppose the defendant's motion but separately moved for an order allowing the filing of an amended claim. It appears that both parties' motion papers were filed in the Clerk's office on the same day, i.e., February 13, 2001. Interestingly, claimant submitted a proposed amended claim verified the 26th day of January, 2001 in which he alleges both a specific amount of damages sought (i.e., $878.80) and that his administrative remedies were exhausted without affording claimant the desired result.

Court of Claims Act § 11 (a) (i) provides in pertinent part:
a. (i) The claim shall be filed with the clerk of the court; . . . 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 the "requirements set forth in Court of Claims Act § 11 are jurisdictional in nature and therefore must be strictly construed" (Finnerty v New York State Thruway Auth., 75 NY2d 721, 722). It is also well settled that service of a claim upon the attorney general by ordinary mail is "insufficient to acquire jurisdiction over the State" (Philippe v State of New York, 248 AD2d 827; Bogel v State of New York. 175 AD2d 493, 494). Where, as in this case, the claimant "concedes that he 'failed to properly serve the [State]' " the Court must dismiss the claim (see, Philippe v State of New York, supra) unless the State waived the issue of defective service by failing to make a pre-answer motion to dismiss on that ground or neglecting to raise the defense in its answer (see, Court of Claims Act § 11 (c) (ii); Turley v State of New York, ____ AD2d ____, 719 NYS2d 380). The defendant raised the manner of service defense in the "first" and "second" affirmative defenses in its answer. In addition, the defendant has attached to its motion papers copies of the notice of intention and claim together with the envelopes in which each was mailed. Neither envelope nor the affidavit of mailing appended to the claim evidence service by certified mail, return receipt requested.

Although motions to amend pleadings are generally freely granted absent a demonstration of prejudice (see, CPLR 3025 (b)) it is well established that a jurisdictionally defective claim is not amenable to amendment (Manshul Constr. Corp. v State Insurance Fund, 118 AD2d 983, 985; see also Grande v State of New York, 160 Misc 2d 383).

Finally, while it is not necessary for a claimant to serve a notice of intention to file a claim prior to commencement of suit, where a claimant chooses to serve such a notice he must do so by personal service or by certified mail, return receipt requested (see, Philippe v State of New York, supra). If a notice of intention to file a claim is served upon the Attorney General in any manner other than personally or by certified mail, return receipt requested the claimant does not obtain the additional time to file and serve a claim provided in the various subdivisions of section 10 of the Court of Claims Act. In this case, pursuant to § 10 (3) claimant might have obtained two years from the August 16, 2000 accrual date within which he could have filed and served the claim for negligent loss of personal property. However, service of the notice of intention by ordinary mail renders the claimant ineligible for the benefits attendant to a properly served notice of intention to file a claim.

At this time claimant may still apply for late claim relief pursuant to Court of Claims Act § 10 (6).

Defendant's motion to dismiss the claim for failure to comply with the manner of service requirements of the Court of Claims Act is granted as service of the claim and notice of intention to file a claim by ordinary mail constitutes a jurisdictional defect requiring dismissal of the claim.


May 8, 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 February 13, 2001 (M-63084);
  2. Affirmation of G. Lawrence Dillon dated February 13, 2001 with exhibits;
  3. Undated notice of motion (M-63085);
  4. Affidavit of Samuel Odell sworn to January 26, 2001 with exhibits.
  5. Affirmation in opposition to "cross-motion" to amend claim dated February 17, 2001.

[1]Court of Claims Act § 11 (c) provides that any objection or defense based upon time limitations contained in section 10 of the act or upon manner of service requirements set forth in subdivision a of section 11 are waived unless raised with particularity in a pre-answer motion to dismiss or in the responsive pleading.