New York State Court of Claims

New York State Court of Claims

CESAR v. THE STATE OF NEW YORK, #2002-009-40, Claim No. 105873, Motion No. M-65421


Defendant's motion to dismiss the claim for untimely service was denied, with the Court holding that the State was estopped from raising the defense.

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:
Attorney General
BY: Heather R. Rubinstein, Esq.,
Assistant Attorney GeneralOf Counsel.
Third-party defendant's attorney:

Signature date:
August 29, 2002

Official citation:

Appellate results:

See also (multicaptioned case)


Defendant has moved to dismiss this claim on the basis that it was not served in a timely manner as required by Court of Claims Act, § 10(3).

The following papers were considered by the Court in connection with this motion:
Notice of Motion, Affirmation, with Exhibit 1,2

"Reply to Notice of Motion to Dismiss", with Exhibits 3

This claim seeks damages for personal injuries allegedly suffered by claimant when he fell from an upper bunk at Watertown Correctional Facility on February 1, 2002, while he was incarcerated at the facility. His claim was filed with the Clerk of the Court of Claims on April 8, 2002. As set forth in defendant's moving papers, his claim was served on the Attorney General on May 15, 2002, with service being effected by certified mail, return receipt requested. Defendant has attached to its moving papers a copy of the envelope in which the claim was mailed, which appears to contain a postmark of May 14, 2002.

Court of Claims Act, § 10(3) provides that claims alleging negligence against the State must be served upon the Attorney General and filed with the Court within 90 days after the accrual of the claim, unless claimant serves a written notice of intention to file a claim within such time.

The service and filing requirements of the Court of Claims Act are jurisdictional prerequisites to the institution and maintenance of a claim against the State and therefore must be strictly construed (Finnerty v New York State Thruway Authority, 75 NY2d 721; Byrne v State of New York, 104 AD2d 782, lv denied 64 NY2d 607).

With regard to this claim, since the incident forming the basis of this claim allegedly occurred on February 1, 2002, and since a notice of intention to file a claim was not previously served, the claim was required to be served and filed by May 2, 2002. Since it was filed with the Clerk of the Court of Claims on April 8, 2002, the claim was timely filed. Service upon the Attorney General was not effected until May 15, 2002, however, which was clearly beyond the 90 day time period provided by Court of Claims Act, § 10(3).

In his answering papers, claimant maintains that he submitted his claim for mailing at the correctional facility in a timely manner on April 3, 2002. He has included among his submitted papers (see Exhibit "A") copies of two "Disbursement or Refund Request" forms, both dated April 3, 2002, requesting that funds be deducted from his inmate account for "legal mail", with indications thereon that certified mail, return receipt requested, was requested for each. One of the requests was apparently approved on April 4, 2002, and the second request was apparently approved on April 5, 2002. There is no indication on either form, however, indicating where these items were to be mailed, nor is there any indication as to the contents of either envelope.

The State may be estopped from asserting insufficient service as a defense in situations where a claimant, while incarcerated as an inmate in a State facility, "did what he was supposed to do and all that defendant allowed" in attempting to achieve timely service (Wattley v State of New York, 146 Misc 2d 968).

In this case, if one is willing to accept claimant's contention that the disbursement requests made on April 3, 2002 pertain to this claim, then it would appear to this Court that claimant had done all that was required of him. Claimant had requested a disbursement for the proper mailing (certified mail, return receipt requested), as required by Court of Claims Act, § 11, and had made his request approximately one month prior to the expiration of his time for the service and filing of his claim. Once his request was approved, and he had provided facility staff with his legal papers to be mailed, claimant had no further control over the actual mailing process.

Based on the fact that his claim was received by the Clerk of the Court on April 8, 2002 (five days after he had requested a disbursement for legal mailing), and the fact that claimant had requested two such disbursements to be made from his inmate account on April 3, 2002, this Court is willing to accept the assumption that one of those requests was for the mailing of his claim, by certified mail, return receipt requested, to the Attorney General. For whatever reason, whether due to the actions or inactions of facility staff or employees of the United State Postal Service, service was not timely effected. However, it appears to this Court that claimant, by requesting the disbursement for postage on April 3, 2002, acted sufficiently in advance of his jurisdictional deadline of May 2, 2002 to anticipate any reasonable delays in the processing of his request and/or the mailing of his claim. The fact that service was not completed until May 15, 2002, over 40 days from the time that a disbursement was requested by claimant, could not be reasonably anticipated by him, nor was there anything more that claimant could do, in his position, to insure that timely service was effected.

Accordingly, the Court holds that the State should be estopped from asserting its defense of untimely service, and its motion to dismiss this claim for untimely service must be denied.

Therefore, it is

ORDERED, that Motion No. M-65421 is hereby DENIED.

August 29, 2002
Syracuse, New York

Judge of the Court of Claims