New York State Court of Claims

New York State Court of Claims

ANDERSON v. THE STATE OF NEW YORK, #2002-015-289, Claim No. 106027, Motion No. M-65378


Claim served by ordinary mail dismissed for lack of jurisdiction.

Case Information

JOSEPH ANDERSON The caption of this claim is hereby amended sua sponte to reflect the only properly named defendant.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
The caption of this claim is hereby amended sua sponte to reflect the only properly named defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant's attorney:
Joseph Anderson, 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 10, 2002
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


The defendant's motion to dismiss the claim for lack of jurisdiction is granted. This claim seeks to recover $2,680.40 in damages arising from the negligent loss of claimant's personal property by the Department of Correctional Services (DOCS) following his transfer from Mid-State Correctional Facility (Mid-State) to Upstate Correctional Facility (Upstate) on some unspecified date.

The instant motion, which was not opposed[1], seeks to dismiss the claim on the grounds that the Court lacks jurisdiction because the claim was not served upon the Attorney General by a method of service authorized by Court of Claims Act § 11 (a) (i); the claim lacks an accrual date; the claim was not timely served within 90 days of its alleged accrual and the claim fails to state a cause of action or theory of liability.

It is established that an inmate may recover damages upon proof that a bailment was established and that the property entrusted to the care and custody of DOCS employees was lost or damaged due to their negligence. Viewed in this context on this pre-answer motion the claim at issue must be found to state a cause of action. Additionally, while the claim does not specifically contain an alleged date of accrual the attachments to the claim demonstrate that claimant was transferred from Mid-State Correctional Facility with 4 bags of inventoried personal property (see, I-64 dated November 19, 2001) and that only 2 bags of property were reportedly received at Upstate Correctional Facility (see, I-64 dated November 24, 2001). From the information attached to the claim and incorporated by reference an approximate date of accrual can be determined.

The claim likewise is not subject to dismissal for untimeliness since it is an inmate personal property claim subject to a 120 day[2] commencement period measured from the date of exhaustion of his administrative remedy pursuant to Court of Claims Act § 10 (9). It appears that following an initial approval of an administrative claim in the amount of $80.46 claimant appealed the determination pursuant to 7 NYCRR § 1700.3 (b)(2)[3]. That appeal was approved in the amount of $180.46 by Jeanne S. Nichols, Division of Program Services Office of Inmate Accounts on April 2, 2002. Under Court of Claims Act § 10 (9) claimant had until July 31, 2002 to commence this action and his attempted commencement by filing and service of the claim on May 6, 2002 must be viewed as timely.

It does not, however, appear that the claim though timely was properly served. Defense counsel avers that the claim was neither personally served nor served by certified mail, return receipt requested. Counsel attached a photocopy of the envelope (Exhibit B) purportedly used by claimant to serve the claim which on its face indicates postage paid in the amount of $.57, a sum which was clearly insufficient to obtain service by certified mail, return receipt requested, under postal rates in effect on May 2, 2002[4]. Nor does the envelope appear to contain any indicia that a return receipt was requested.

As previously noted, claimant submitted an unsigned and unsworn statement in opposition characterized as a "supplemental motion." That submission including its attachment is a legal nullity and cannot be viewed as a refutation of defense counsel's assertion of improper service. Even if the papers and attachment had been properly submitted it does not appear that claimant's written request for "legal mail" would have required DOCS employees to obtain certified mail, return receipt requested on claimant's behalf (cf., Philippe v State of New York, 248 AD2d 827; Espinal v State of New York, 159 Misc 2d 1051).

Section 11 (a) (i) of the Court of Claims Act § 11 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.

September 10, 2002
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
  1. Notice of motion dated June 10, 2002;
  2. Affirmation of G. Lawrence Dillon dated June 10, 2002, with exhibits;

Submitted but not considered:

Unsworn "Supplemental Motion" of Joseph Anderson, undated, with exhibit.

[1]While claimant submitted an unsigned, unsworn "supplemental motion in response" [sic] that document is a legal nullity and the defendant's motion is deemed to be unopposed (see, Doumanis v Conzo, 265 AD2d 296; cf., Sam v Town of Rotterdam, 248 AD2d 850).
[2]Defense counsel erroneously asserted on the motion that a 90 day limitation period pursuant to Court of Claims Act § 10 (3) applied to this claim.
[3]7 NYCRR § 1700.3 (b) provides that appeals involving claims up to $500 are reviewed by the Superintendent or his designee while claims over $500 are reviewed by the Director of Budget and Finance or that individual's designee.
[4]U.S. Postal Service rates in effect at the time the claim was mailed required $2.10 for certified mail plus $1.50 for a return receipt and regular postage based on the weight of the item with a minimum regular postage of $.34. These minimum charges total $3.94 (see, U.S. Postal Service Notice 123, Ratefold, eff. July 1, 2001).