New York State Court of Claims

New York State Court of Claims

LUNDY v. THE STATE OF NEW YORK, #2002-005-522, Claim Nos. 100259, 100260, Motion Nos. M-64627, M-64628


Defendant's motions to dismiss the claims herein are granted; service by regular mail.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
100259, 100260
Motion number(s):
M-64627, M-64628
Cross-motion number(s):

Claimant's attorney:
William Lundy, Pro Se
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Timothy P. Mulvey, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
March 13, 2002

Official citation:

Appellate results:

See also (multicaptioned case)


On March 13, 2002, the following papers, numbered 1 to 9, were read on motions by Defendant for dismissal of the claims:

1, 2, 3, 4 Notices of Motion, Affirmations and Exhibits Annexed
  1. Claimant's correspondence in Opposition received February 19, 2002
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, 1997.

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][3][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.

March 13, 2002
Rochester, New York

Judge of the Court of Claims