New York State Court of Claims

New York State Court of Claims

STEELE v. THE STATE OF NEW YORK, #2002-019-555, Claim No. 106079, Motion No. M-65405


State's motion to dismiss bailment claim granted due to Claimant's failure to comply with CCA 10 and 11.

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:
BY: James E. Shoemaker, Assistant Attorney General,of counsel
Third-party defendant's attorney:

Signature date:
July 29, 2002

Official citation:

Appellate results:

See also (multicaptioned case)


In lieu of an answer, the State of New York (hereinafter "State") moves for an order dismissing this claim based upon Claimant's failure to comply with Court of Claims Act (hereinafter "CCA") 10 and 11. The Court has not received any papers by or on behalf of Claimant, a pro se inmate.

The Court has considered the following papers in connection with this motion:
1. Claim, filed May 17, 2002.
2. Notice of Motion No. M-65405, dated June 21, 2002, and filed June 24, 2002.
3. Affirmation of James E. Shoemaker, AAG, in support of motion, dated June 21, 2002, with attached exhibits.

This Claim, sounding in bailment, alleges that Claimant discovered that his personal property had been lost after multiple transfers between Southport Correctional Facility to Downstate Correctional Facility and then to Clinton Correctional Facility. More specifically, Claimant alleges that on September 12, 2001 draft room personnel at Clinton Correctional Facility presented him with property that had his name on it, but was not in fact his property. The Claimant also asserts that "I filed a claim with the Head Clerk at Clinton Corr. Fac., on 11/21/01 Claim #020-167-01, they only offered me Four Dollars..." (Claim, ¶ 2), but no further details are provided relative to said grievance or any subsequent appeal.

On March 29, 2002, a Notice of Intention was served upon the Attorney General's office by certified mail, return receipt requested, the legal effect of which, if any, will be discussed below. This Claim was filed with the Clerk of the Court and served upon the Attorney General's office by regular mail on May 17, 2002.

By way of this motion, the State seeks dismissal herein on the grounds that this Claim was served by regular mail which is not a prescribed manner pursuant to CCA 11. It is well-settled that service by regular mail is insufficient to acquire jurisdiction over the State. (Philippe v State of New York, 248 AD2d 827). The State submits a copy of the envelope in which said Claim was received which clearly denotes that it was sent by regular mail. While Claimant has not responded to this motion, the Court has still reviewed the affidavit of service which was attached to the Claim. The affidavit of service merely indicates service "by mailing" and, as such, is insufficient since it does not specify the method of service employed. (CPLR 306). Nor has Claimant come forward with the requisite proof of service, such as a signed green receipt card, as is his burden. (Commack Self-Serv. Kosher Meats v State of New York, 270 AD2d 687).

It is a fundamental principle of practice in the Court of Claims that the filing and service requirements contained in the CCA are jurisdictional in nature and must be strictly construed. (Finnerty v New York State Thruway Auth., 75 NY2d 721, 722-723). The Court is without discretion to waive these requirements. Consequently, this Claim must be dismissed due to Claimant's failure to comply with CCA 10 and 11.

The Court notes an additional basis for dismissal, namely Claimant's failure to establish his compliance with the time constraints of CCA 10 (9) which states that:
[a] claim of any inmate in the custody of the department of correctional services for recovery of damages for injury to or loss of personal property may not be filed unless and until the inmate has exhausted the personal property claims administrative remedy, established for inmates by the department. Such claim must be filed and served within one hundred twenty days after the date on which the inmate has exhausted such remedy.

Here, Claimant checked the box on his Claim form which states: "[t]his is a claim by correctional facility inmate to recover damages for injury to or loss of personal property and it is served and filed within 120 days of exhaustion of claimant's administrative remedies." (Claim, ¶ 5). However, there is nothing in this record from which this Court could conclude that Claimant pursued, let alone exhausted, the administrative remedies available to him pursuant to 7 NYCRR Part 1700. Consequently, the Court finds Claimant has not demonstrated that he exhausted the available administrative remedies pursuant to CCA 10 (9) and, as such, may not pursue his claim in this venue. (Richards v State of New York, Ct Cl, August 3, 2000, Corbett, Jr., J., Claim No. 102440, Motion No. M-61851; Christian v State of New York, Ct Cl, May 11, 2001, Midey, Jr. J., Claim No. 103806, Motion No. M-63207).

Finally, the Court also notes that service of a notice of intention is of no legal effect in relation to a bailment claim under CCA 10 (9). (Cepeda v State of New York, Ct Cl, October 22, 2001, Midey, Jr. J., Claim No. 104717, Motion No. M-64015).

Accordingly, for the reasons stated above, it is ORDERED that the State's motion to dismiss, Motion No. M-65405, is GRANTED and Claim No. 106079 is DISMISSED.

July 29, 2002
Binghamton, New York

Judge of the Court of Claims