New York State Court of Claims

New York State Court of Claims

MERCADO v. THE STATE OF NEW YORK, #2002-015-283, Claim No. 105818, Motion No. M-65226


Inmate claim seeking to recover damages for loss of personal property dismissed where claim was served upon Attorney General by ordinary mail.

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:
Robert Mercado, Pro SeNo Appearance
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: G. Lawrence Dillon, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
August 6, 2002
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


The defendant's pre-answer motion to dismiss the claim for lack of jurisdiction is granted. The claim sounds in bailment and seeks recovery of $584.03 plus interest which is alleged to be the value of personal property lost through the negligence of Department of Correctional Services (DOCS) personnel following a transfer of claimant from Oneida Correctional Facility to Fishkill Correctional Facility. According to the claim's allegations the loss took place between November 6, 2000 and February 2001 when a portion of claimant's missing property was delivered to him.

Claimant filed an administrative personal property claim with DOCS at Fishkill on March 27, 2001 in which the value of the lost property was alleged to be $401.18 (defendant's Exhibit E). The administrative claim was disapproved on May 23, 2001 on the ground that claimant had not demonstrated that the State was liable for the loss of the property. Claimant appealed the steward's disapproval to the facility superintendent (William P. Mazzuca) who concurred with the original decision. The superintendent's disapproval is undated and Exhibit E shows merely that the appeal was received by the Fishkill Superintendent's office on June 28, 2001. It does not specify the date of disposition of the appeal. The claim was served by ordinary mail upon the Attorney General's Office, Claims Bureau on April 3, 2002 and a photocopy of the envelope in which it was mailed (defendant's Exhibit B) bears a postage meter stamp showing postage paid in the amount of $1.49 and contains none of the indicia of certified mail, return receipt requested. Although defense counsel provided no proof of the claim's filing, court records indicate that the claim was filed with the Clerk of the Court on March 28, 2002.

The defendant moves to dismiss on the grounds that the claim was not served upon the Attorney General by one of the methods of service authorized by Court of Claims Act § 11 (a) and on the ground that the claim was untimely served beyond the 120 day period prescribed for an inmate personal property claim by Court of Claims Act § 10 (9). It is alleged that each of these grounds (i.e., untimeliness and improper service) deprives the Court of jurisdiction to adjudicate the claim. The motion was unopposed.

It is clear that a claim based upon the alleged damage to or loss of an inmate's personal property must be filed and served within 120 days of the exhaustion of claimant's administrative remedy (Court of Claims Act § 10 [9]) and that claimant's failure to comply with the statutory time frame will result in dismissal of the claim (see, Stroud v State of New York, 184 Misc 2d 876; Cepeda v State of New York, Ct Cl [Claim No. 104717, Motion No. M-64015] October 22, 2001, Midey, J., unreported). Where, however, the moving defendant fails to provide evidentiary support for the assertion that the claim was untimely served pursuant to section 10 (9) dismissal will be denied. The documentary proof attached to defense counsel's affirmation in support of the motion fails to establish the date upon which claimant's administrative appeal was determined by the facility's superintendent and therefore fails to demonstrate the time when the one hundred twenty day period for filing and service of the claim began.

While as defense counsel alleges claimant's service of the claim upon the Attorney General on April 3, 2002 may indeed have occurred outside the 120 day period prescribed by Court of Claims Act § 10 (9) defense counsel has not made the requisite showing on this motion. Absent proof of the date of the final determination of the administrative appeal dismissal on the ground of the claim's untimeliness pursuant to Court of Claims Act § 10 (9) must be denied.

The instant motion is, however, also premised upon the claimant's failure to serve the claim upon the Attorney General by one of two methods prescribed in Court of Claims Act § 11 (a) (i). That statutory provision in relevant part provides:
The claim shall be filed with the clerk of the court; and, except in the case of a claim for the appropriation by the state of lands, a copy shall be served personally or by certified mail, return receipt requested, upon the attorney general within the times hereinbefore provided for filing with the clerk of the court.
It is well established that the service and filing requirements of the Court of Claims Act are jurisdictional in nature. In Lichtenstein v State of New York, 93 NY2d 911, the Court of Appeals quoting from its earlier decision in Dreger v New York State Thruway Auth., 81 NY2d 721, 724, stated: "[B]ecause suits against the State are allowed only by the State's waiver of sovereign immunity and in derogation of the common law, statutory requirements conditioning suit must be strictly construed."

"Ordinary mail is not one of the methods of service authorized by Court of Claims Act § 11 (a)" (Turley v State of New York, 279 AD2d 819) and "the use of ordinary mail to serve the claim upon the Attorney-General is insufficient to acquire jurisdiction over the State" (Philippe v State of New York, 248 AD2d 827). Upon the proof presented and in the absence of proof establishing that service of the claim was accomplished in accordance with the requirements of Court of Claims Act § 11 (a) the Court lacks jurisdiction and the claim must be dismissed (Commack Self-Serv. Kosher Meats v State of New York, 270 AD2d 687; Spectra Prods. v Indian Riv. Citrus Specialties, 144 AD2d 832).

Accordingly, the motion is granted and the claim is dismissed.

August 6, 2002
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
  1. Notice of motion dated May 6, 2002;
  2. Affirmation of G. Lawrence Dillon dated May 6, 2002 with exhibits.