New York State Court of Claims

New York State Court of Claims

WRIGHT v. THE STATE OF NEW YORK, #2002-013-028, Claim No. 104699, Motion No. M-65286


Pro se inmate's motion for "reconsideration" of a prior motion is denied. Both a notice of intention, if one is used, and a claim, must be served in accordance with the Requirements of Court of Claims Act §11(a), and inmate bailment claims may not be commended until all administrative remedies are exhausted.

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 of the State of New York
BY: THOMAS G. RAMSAY, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
September 9, 2002

Official citation:

Appellate results:

See also (multicaptioned case)


On June 19, 2002, the following papers were read on Claimant's motion for reconsideration of a prior order of this Court:

1. Notice of Motion and Supporting Papers of Lawrence Wright, Pro Se

2. Affirmation in Opposition of Thomas G. Ramsay, Esq. (Ramsay Affirmation)

3. Filed Papers: Claim; Answer

In a decision and order filed May 17, 2002 (Motion No. M-64593), Claimant's motion to have his notice of intention deemed a claim was denied. In that earlier motion, Claimant acknowledged that, although he had properly served his notice of intention by certified mail, return receipt requested (Court of Claims Act §11[a]), his claim had been served by regular mail only because he interpreted the relevant statute to require specialized service of only one document, not both. Defendant raised the claim's improper service as an affirmative defense and, essentially conceding the validity of that defense, Claimant sought the Court's permission to have his notice of intention deemed a claim. That motion was denied on the ground that Claimant, a State prison inmate who sought to assert a claim for property loss, had not exhausted his administrative remedies at the time the notice of intention was served, thereby making any claim that could have been commenced by it premature (Court of Claims Act §10[9]).

Although Claimant states that the instant motion seeks "reconsideration" of that earlier decision, upon closer reading it is apparent that what he is truly challenging is the viability of Defendant's affirmative defense based on improper service of the claim. Because Claimant is a pro se litigant, however, and quite clearly concerned with the fate of his claim, the arguments that he raises will be addressed.

Claimant returns to his earlier contention that when both a notice of intention and a claim are employed to commence an action, only one or the other has to be served either personally or by certified mail, return receipt requested. (This would make regular mail service sufficient for the other document.) This interpretation, however, is negated by the plain wording of the statute, which recites, separately for each document, the same service requirements:

The claim shall be filed with the clerk of the court; and... a copy shall be served personally or by certified mail, return receipt requested, upon the attorney general.... Any notice of intention shall be served personally or by certified mail, return receipt requested, upon the attorney general....

Furthermore, Claimant's interpretation of the statute has been specifically rejected by the Third Department in Hodge v State of New York (213 AD2d 766, 767, affg 158 Misc 2d 438). In Hodge the Court specifically found the service of the Notice of Intention, as well as the service of the Claim, must be by certified mail, return receipt requested.[1]

Claimant also objects to the fact that the Office of the Attorney General does not in all instances actually "sign" for receipted mail but, instead, uses a mechanical stamp to acknowledge receipt. This, he contends, is a "violation of the requirement for ‘Personal Notification'" (Wright Motion, ¶2). He does not explain, however, how possible use of a stamp rather than a personal signature resulted in any harm to him or interfered with his ability to commence this action. There is no dispute that the March 2001 notice of intention was properly served (whether service was acknowledged by a stamp or by signature is unknown and irrelevant), and Claimant acknowledges that his August 2001 claim was served only by regular mail.

In an argument that is more closely directed to the issues raised on the prior motion, Claimant also argues that he would not have been able to accomplish such exhaustion because taking the time to appeal the original unfavorable ruling would have prevented him from serving the notice of intention within the 90-day time limitation applicable to tort claims, pursuant to Section 10[3] (or 3-a or 3-b) of the Court of Claims Act. While a prison inmate's bailment claim is an action in tort, the time period in which that particular type of claim must be commenced is set by a different statute, Section 10[9] of the Court of Claims Act. That statute provides that the claim must be filed within 120 days after the date on which the inmate finally exhausts his administrative remedies. Thus, Claimant would have had ample time to follow through with his administrative remedies and still file his claim. The fact that he did not do so was the basis of the earlier motion's denial: the prematurity of any claim commenced at the time the notice of intention was served.

Finally, Claimant contends that his claim should not have been dismissed "for such [a] minor infraction" as improper service. To the contrary, however, the statutory requirements for time and manner of service in this Court are jurisdictional and constitute conditions on which the State's wavier of sovereign immunity is premised. Accordingly, failure to comply with those requirements deprives this Court of the power to hear a claim (Dreger v New York State Thruway Auth., 81 NY2d 721, 724; Bogel v State of New York, 175 AD2d 493).

Accordingly, Claimant's motion is denied.

September 9, 2002
Rochester, New York

Judge of the Court of Claims

  1. [1]It is noted that Court of Claims Act 11(a), as interpreted in Hodge was amended in 1995, but that does not in any manner change the service requirements upon the Attorney General.