New York State Court of Claims

New York State Court of Claims

CLAUDIO v. THE STATE OF NEW YORK, #2002-015-286, Claim No. 105852, Motion Nos. M-65240, M-65331


Claim dismissed for lack of jurisdiction arising out of service upon the AG 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):
M-65240, M-65331
Cross-motion number(s):

Claimant's attorney:
Angel Claudio, Pro Se
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: G. Lawrence Dillon, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
September 5, 2002
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


The defendant's pre-answer motion (M-65240) to dismiss the claim for lack of jurisdiction arising from the failure to properly serve the claim upon the Attorney General as required by Court of Claims Act § 11 (a) (i) is granted. Claimant's motion for permission to amend or "recommence" the claim is denied. The claim seeks to recover $500,000 in damages for actions by DOCS officials and employees which, claimant alleges, violated his constitutional rights of free speech, due process and freedom from cruel and unusual punishment. Specifically, claimant seeks monetary recovery for his confinement in a special housing unit (SHU) at Mohawk Correctional Facility, Rome, New York, for a period of 90 days beginning on March 21, 2002 following a Superintendent's Hearing at which he was found guilty of interference with an employee (7 NYCRR § 270.2 B, Rule 107.10) and threats (7 NYCRR § 270.2 B, Rule 102.10) and not guilty of engaging in violent conduct (7 NYCRR § 207.2 B, Rule 104.11) and assault on staff (7 NYCRR § 707.2 B, Rule 100.11). The claim alleges that his conviction on two of the charges resulted from inadequate representation by an inmate assistant (7 NYCRR § 251-4.1) who failed to obtain certain documents on claimant's behalf which he alleges would have produced a finding of not guilty on all four charges of inmate misbehavior. The claim further alleges that retaliatory actions were taken against claimant for filing 15-16 grievances and 7 complaints. It is unclear from the claim what retaliatory actions were taken against claimant although the claim does alleges that he was denied a washcloth and a second pair of slippers.

The claim also alleges that on March 18, 2002 an unnamed supervisor issued a false misbehavior report charging claimant with a violation of Rule 104.12, i.e., leading, organizing, participating in or urging other inmates to participate in work stoppages, sit-ins, lock-ins or other actions detrimental to the facility and, further, charging a violation of Rule 107.20 which prohibits lying, incomplete, misleading and/or false statements or information by inmates. It is unclear from the documentation offered on the motion what if any administrative action was taken with regard to these two alleged rule violations.

The defendant moved to dismiss on several grounds including lack of jurisdiction arising from the claimant's failure to properly serve the claim pursuant to Court of Claims Act § 11 (a) (i). The defendant also moves to dismiss the claim for failure to state a cause of action.

Claimant opposed the motion by a sworn reply in which he alleges that the Court has jurisdiction to hear and determine his constitutional tort claim based upon an alleged denial of due process. Claimant therein admitted, however, that he did not serve the claim by certified mail, return receipt requested, which he argues is required only for a notice of intention to file a claim.

Claimant has misread section 11 (a) (i) of the Court of Claims Act which clearly provides, in relevant part, the following:
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).

By notice of motion dated May 22, 2002 and filed on June 10, 2002 claimant moved for an order permitting him "to recommence action because 90 days to file a claim have not expire [sic]". The notice of motion further requested the Court's permission to amend the original claim. While claimant attached what purports to be an affidavit of service of this motion upon Assistant Attorney General G. Lawrence Dillon, 207 Genesee Street, Room 508, Utica, New York 13501 the document does not specify when the alleged mailing occurred and is, therefore, insufficient to establish service of the motion on the defendant. No opposition to the motion was received.

To the extent that the motion seeks leave of court to amend the claim it must be denied as it is well settled that a jurisdictionally defective claim may not be cured by amendment (see, Manshul Const. Corp. v State Ins. Fund, 118 AD2d 983; Grande v State of New York, 160 Misc 2d 383). It would, therefore, be improper for this Court to grant leave permitting the requested amendment. Claimant's purported reservation of rights to amend the claim contained in the original claim has no legal effect and does not overcome a jurisdictional defect. Likewise, there is no "recommencement" of a jurisdictionally defective claim in the Court of Claims. Claimant's remedy is to seek late claim relief pursuant to Court of Claims Act § 10 (6).

September 5, 2002
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:

Motion No. M-65240:
  1. Notice of motion dated May 10, 2002;
  2. Affirmation of G. Lawrence Dillon dated May 10, 2002 with exhibits;
  3. Affidavit of Angel Claudio sworn to May 14, 2002;

Motion No. M-65331:

  1. Notice of motion for permission to recommence action; re-service; amend claim dated May 22, 2002;
  2. Affidavit of Angel Claudio sworn to May 22, 2002 with exhibits

Submitted but not considered:

Unsworn letter dated June 16, 2002 from Angel Claudio with attachment.