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,
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.