New York State Court of Claims

New York State Court of Claims

GARLAND v. THE STATE OF NEW YORK, #2001-030-565, Claim No. 101053


Inmate failed to establish service of original claim by certified mail, return receipt requested,

upon Attorney General; amended claim not filed as required; claim dismissed for a lack of


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:
Third-party defendant's attorney:

Signature date:
December 21, 2001
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)

William Garland, the Claimant herein, alleges in Claim No. 101053 he was wrongfully confined while he was incarcerated at Sing Sing Correctional Facility (hereafter Sing Sing). Trial of the matter was held at Sing Sing on November 16, 2001.

On October 11, 2001 the Claimant filed an "Amended Claim" with the Chief Clerk. As a consequence of the Claimant's having initially withdrawn his Claim in the previous year, and the file having been closed at the direction of Presiding Judge Susan Phillips Read on July 12, 2000, Claimant was directed by letter to move to restore his claim before this court, and such oral application was made and granted on November 16, 2001. A written application had been sent to the Attorney General's office, as well as to Chambers, but does not appear to have been filed with the Chief Clerk's office as required. See, 22 NYCRR § 206.5.
As an initial, and ultimately concluding matter for reasons which follow, Defendant made a motion to dismiss the claim based upon its fourth affirmative defense, a failure to properly serve the claim, pursuant to § 11 Court of Claims Act. The Attorney General asserted the Claim had been served by regular mail, not certified mail, as shown by the original envelope containing the claim. The Attorney General also noted that the amended claim was not served certified mail but rather by regular mail. The Court reserved decision on the motion, as well as the State's objection to any consideration of the amended claim filed by Claimant in the absence of a motion to amend. 22 NYCRR § 206.7(b) and § 3025(b) Civil Practice Law and Rules.

In reviewing the file, the Court notes that in reference to the original claim, filed September 13, 1999, an affidavit of service appended thereto indicates that it was served certified mail. No receipts for certified mail are included, however, nor were they presented at the time of trial. Indeed, in his testimony before the court the Claimant admitted that the original claim was not served on the Attorney General by certified mail, return receipt requested.

Claimant did provide the Court with a receipt for certified mail, as well as disbursement forms for same, showing service on the Attorney General of some documents on June 7, 2001. [Claimant's Exhibit "1"] The receipt indicates "received" by the Attorney General's office, and refers to article number 7000 0520 0021 5074 1107. When the Attorney General pointed out that there was no indication of what was served, Claimant indicated that the Attorney General's office was sent the "same papers as the court."[1]

After reviewing paragraph "3" of the amended claim, the certified mail receipts appended to the amended claim, and an affidavit of service executed by the Claimant before a Notary Public on October 4, 2001, it seems that what was served certified mail by the Claimant in June, 2001, was a notice of intention, not the amended claim. The article number referred to in paragraph "3" of the amended claim discussing service of a notice of intention is the same as the certified mail receipts received in evidence. The affidavit of service indicates that "on the 5
th day of October 2001, with respect to the above action, I served a true copy of the Notice of Intention and Amended Claim with supporting exhibit upon: Elyse Angelico, Assistant Attorney General, by mailing a true copy to 101 East Post Road, White Plains, New York 10601." There is no indication in the affidavit of service that certified mail was used, nor is there a receipt referable to that date. Finally, in the affidavit executed by Claimant before a Notary Public on November 6, 2001, submitted in support of the application to restore his case, Claimant indicates that service of the amended claim was by regular mail.
The filing and service requirements contained in §§10 and 11 Court of Claims Act are jurisdictional in nature and must be strictly construed.
Finnerty v New York State Thruway Auth., 75 NY2d 721, 722-723 (1989). Service upon the Attorney General by ordinary mail is generally insufficient to acquire jurisdiction over the State, unless the State has failed to properly plead jurisdictional defenses or raise them by motion. §11(c) Court of Claims Act; Edens v State of New York, 259 AD2d 729 (2d Dept. 1999); Philippe v State of New York, 248 AD2d 827 (3d Dept 1998). Additionally, the Claimant has the burden of establishing proper service. Boudreau v Ivanov, 154 AD2d 638, 639 (2d Dept. 1989). Finally, just as motions may be served by regular mail, assuming jurisdiction is established through a validly served claim, it is well settled that an amended claim may be served regular mail.
Here, the State's Verified Answer pleads the affirmative defense with particularity, preserving the issue for review. §11(c)(ii) Court of Claims Act. When a claim is restored, it is placed back on the Court's calender with whatever jurisdictional infirmities it possesses. If it was not served in a fashion allowing this Court to exercise jurisdiction - as is the case here - it must be dismissed. Accordingly, Claim Number 101053 is hereby dismissed in its entirety.

Although the objection is moot given the within dismissal, the State's objection to consideration of the Amended Claim is also sustained. No proper application was made to amend the pleading as required. 22 NYCRR § 206.7(b); § 3025(b) Civil Practice Law and Rules.

Let Judgment be entered accordingly.

December 21, 2001
White Plains, New York

Judge of the Court of Claims

[1]All quotations are to trial notes or audiotapes unless otherwise indicated.