6, 7, 8, 9 Filed Papers: Claims, Answers
Upon the foregoing papers, these motions are granted.
In Motion No. M-64628, the Defendant seeks dismissal of Claim No. 100259 on the
ground that it was not properly served upon the Defendant in a manner mandated
by Court of Claims Act §11(a), to wit, it was served by regular mail.
Defendant acknowledges that a Notice of Intention to file a claim was properly
served upon it by certified mail, return receipt requested on November 10, 1997
(Exhibit A). Service of the claim was accomplished on May 3, 1999, albeit by
regular mail (Exhibit B). The Defendant in its Answer, clearly and particularly
raised such objection in its Seventh Affirmative Defense. The claim alleges a
"slip and fall" at the Willard Drug Treatment Program on or about August 15,
In his written opposition, Claimant acknowledges the service by regular mail,
but contends that at the time he did not "have any money in [his] account, and
he "was denied any advance in [his] account." He contends that he was told by
his counselor and a senior counselor at Fishkill Correctional Facility that he
could only get an advance for his medical records. He asserts that it was
"total impossible for claimant to be able to mail his claim any other way
besides regular mail."
Claimant's argument rings somewhat hollow for several reasons. First, the
Defendant's Answer, dated June 3, 1999, raised the issue clearly in the Seventh
Affirmative Defense, yet Claimant ignored the defense until such time as the
Defendant sought dismissal, some 2 ½ years after the Answer was served.
Claimant did nothing, and now claims he was unable to afford the mailing costs,
and that he was misinformed about the availability of advances except for
medical records. Regulations for the Department of Correctional Services (7
NYCRR Part 721) clearly specify the availability of advances for special
handling of privileged correspondence, such as certified mail and return receipt
(§721.3[a][v]), which will be approved if required by statute, as is the
case in Court of Claims Act §11(a). Indeed, Claimant was cognizant of
those service requirements inasmuch as he previously served the Notice of
Intention by the requisite certified mail, return receipt requested.
So, Claimant, having ignored the affirmative defense, and having waited to
respond to a dismissal motion, and on apparent notice of the service
requirements, seemingly asks the court to invoke an estoppel against the
Defendant. Here the allegations are not persuasive, are tardily made, and of
great significance to me, Claimant had an opportunity to seek remedial relief
when he was served with the Answer. First, he could have moved to strike the
affirmative defense. Second, he could have sought permission to file a late
claim to counteract the jurisdictional defense raised by the State. And, third,
perhaps most interesting to me, is that he had until August 15, 1999, (two years
from accrual of his claim, as extended by service of the Notice of Intention) to
re-serve his claim in a statutorily required manner, that is two months after
the Defendant's answer. Claimant did nothing.
Contemplating an estoppel against a governmental entity is rare and rigidly
circumscribed, (see Francis v State of New York, 155 Misc 2d 1006, a case
in which the Defendant was estopped from raising a particular defense). The
instant claim is more similar to the facts in Calco v State of New York
(165 AD2d 117), in that there is no submission here other than Claimant's letter
in opposition, raising an argument that is somewhat belied by the passage of
time. Also in Calco the time in which to make a late filing motion had
not yet expired, and here Claimant was put on timely notice of the deficiency,
with a timely opportunity to overcome his service inadequacy. I am not unaware
that inmates do not have access to a post office and must rely upon employees of
the Defendant to accomplish the mailing of claims in the required manner.
Claimant's objection in this regard might sound more plausible if he had acted
in a more timely fashion. Thus, I cannot find that the equities lie with the
claimant, and I decline to estop the Defendant from raising the defense. There
being no dispute that the instant claim was improperly served by regular mail,
and the Defendant having properly preserved such defense with particularity, the
motion is granted and the claim is dismissed (Turley v State of New York,
279 AD2d 819; Bogel v State of New York, 175 AD2d 493; Baggett v State
of New York, 124 AD2d 969).
The issue with respect to Claim No. 100260 in Motion No. M-64627, is identical
in all respects. That claim alleges inadequate medical care and treatment
relating to the injuries Claimant sustained in the slip and fall which form the
allegations in Claim No. 100259. In the Answer to this claim, the Seventh
Affirmative Defense raises identical issues with respect to the manner of
service of the claim, and additionally asserts that the "Claim served by
Claimant was untimely because the Notice of Intent was not properly served in
accordance with the Court of Claims Act." Addressing the latter aspect of the
allegation first, I find that the questioned service of the Notice of Intention
is not preserved with sufficient particularity to place Claimant on notice of
the objection, especially in contrast with the specificity of the objection
regarding service of the claim by regular mail. The extension of logic that
leads to the argument that the claim is untimely because the Notice of Intention
was ineffective, jumps too far in my estimation to satisfy the particularity
requirements of §11(c).
That being said, however, the improper service of the claim by regular mail,
vitiating §11(a) was sufficiently preserved. This is not to say that
reference to the statute and the jurisdictional aspect of the defense might
provide greater clarity, indeed greater particularity, but it is not necessary
to quibble under the existing circumstances. The affirmative defense was
adequate to place the Claimant on notice of its allegations. Claimant's
opposition to this motion is identical and contained in the same correspondence
he submitted in opposition to the motion in Claim No. 100259. It is similarly
to no avail for the reasons noted above.
Accordingly, the motions are granted, and the claims are dismissed.