New York State Court of Claims

New York State Court of Claims

HICKS v. THE STATE OF NEW YORK, #2002-009-55, Claim No. 106127, Motion Nos. M-65623, M-65642


Defendant's motion to dismiss the claim for improper service was granted, and claimant's motion asserting the defense of estoppel was found inapplicable, and was therefore denied.

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: Joel L. Marmelstein, Esq.,
Assistant Attorney GeneralOf Counsel.
Third-party defendant's attorney:

Signature date:
November 18, 2002

Official citation:

Appellate results:

See also (multicaptioned case)


Defendant has brought this motion (Motion No. M-65623) seeking an order dismissing the claim. Claimant has responded with a motion (Motion No. M-65642) in opposition to defendant's motion, as well as seeking an order dismissing defendant's affirmative defense asserting a lack of jurisdiction.

The following papers were considered by the Court in connection with these motions:
Notice of Motion, Affirmation in Support, with Exhibits (Motion No. M-65623) 1,2

Motion to Dismiss First Affirmative Defense, Affidavit in Support, with Exhibits (Motion No. M-65642) 3,4

Reply Affidavit, with Exhibit 5

Affidavit of Claimant (Responding to Defendant's Reply Affidavit) 6

In his affirmation in support of the defendant's motion to dismiss, defendant's attorney contends that the claim was not properly served pursuant to Court of Claims Act, § 11(a), which requires that a claim be served upon the Attorney General either personally or by certified mail, return receipt requested. Defendant asserts that the claim, which was received by the Attorney General on May 29, 2002, was served by regular, first class mail. Defendant's attorney has attached a copy of the envelope in which the claim was mailed (see Exhibit C to Items 1,2) which has postage of $.34 indicated thereon, which postage is clearly insufficient for the costs of certified mail, return receipt requested.

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 they 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).

Therefore, since this claim was not served in accordance with the requirements of Court of Claims Act, § 11(a), it is subject to dismissal for improper service.

In his motion submitted in opposition to defendant's motion to dismiss, claimant asserts that the State should be estopped from raising the defense of improper service. In his supporting affidavit (see Item 4), claimant asserts that on May 23, 2002, he had delivered to the mail room at Mid-State Correctional Facility (where he was incarcerated at the time) two envelopes for mailing, each containing his claim. One of the envelopes was addressed to the Court of Claims in Albany, with the other addressed to the Attorney General. Claimant further asserts that he requested that both envelopes be mailed by certified mail, return receipt requested, and that he had included an "authorized advance request" form, since he did not have sufficient funds in his account at that time to pay for the required postage. Claimant further asserts that the envelope addressed to the Court of Claims was mailed by certified mail, return receipt requested, and that a "disbursement or refund request" form for this mailing was provided to him.

Claimant, however, apparently does not have in his possession any such acknowledged disbursement form pertaining to the mailing to the Attorney General.

In response to claimant's motion, defendant has submitted the affidavit of Kathy Britton (see Item 5), who is the mail room clerk at Mid-State Correctional Facility. In her affidavit, she states that claimant, although he requested a certified mailing for the Court of Claims during the week of May 20-24, 2002, did not request any such mailing to the Attorney General during this time. If there had been such a request, she asserts that both she and claimant would have a copy of the "disbursement or refund request" form for such a mailing. Based upon the fact that neither she nor claimant has such a copy, she has concluded that a request for certified mailing was not made by claimant. Her records do indicate that a second item, with the regular mailing fee of $.34, was processed at the same time that the certified mailing was processed, which is consistent with the postage indicated on the envelope, containing the claim, received by the Attorney General on May 29, 2002.

In certain situations, the doctrine of estoppel can be invoked against the State, in determining whether an inmate-claimant has complied with the service requirements of Court of Claims Act, §§ 10 and 11, when it can be established that the State was the cause of the defect in service (see, Wattley v State of New York, 146 Misc 2d 968). Estoppel will only be invoked, however, upon proper proof submitted by the claimant.

In this case, although claimant provided a copy of the disbursement form authorizing payment of the certified mailing costs for the envelope addressed to the Court of Claims, claimant did not submit a copy of such a disbursement form for the mailing to the Attorney General. Without such proof, the Court finds that claimant's allegation that the State failed to act upon his request is insufficient to overcome the presumption of regularity (Wattley v State of New York, supra). The Court must therefore find that claimant has failed to submit sufficient proof warranting the application of estoppel against the State in this claim.

Since the doctrine of estoppel is found to be inapplicable to the facts herein, the first affirmative defense raised by the State in its answer (relating to the manner of service) must be retained. Accordingly, the Court finds that the defendant has properly raised the defense of improper service, with particularity, as required by § 11(c) of the Court of Claims Act.

Accordingly, for the reasons set forth above, it is

ORDERED, that Motion No. M-65623, the State's motion to dismiss, is hereby GRANTED; and it is further

ORDERED, that Motion No. M-65642, claimant's motion to strike the State's affirmative defense, is hereby DENIED; and it is further

ORDERED, that Claim No. 106127 is hereby DISMISSED.

November 18, 2002
Syracuse, New York

Judge of the Court of Claims