CENDALES v. THE STATE OF NEW YORK, #2002-019-585, Claim No. 105843, Motion No.
State moved to dismiss due to Claimant's failure to comply with CCA 10. Court
rejected Claimant's estoppel argument and dismissed Claim.
Footnote (claimant name)
THE STATE OF NEW YORK
Footnote (defendant name)
FERRIS D. LEBOUS
GREGORY CENDALES, PRO SE
HON. ELIOT SPITZER, ATTORNEY GENERAL
BY: Joseph F. Romani, Assistant Attorney General,of counsel
November 12, 2002
See also (multicaptioned
The State of New York (hereinafter "State") moves for an Order dismissing this
Claim pursuant to Court of Claims Act (hereinafter "CCA") 10 and 11. Claimant,
an inmate appearing pro se, opposes the motion.
The Court has considered the following papers in connection with this
Claim, filed April 2, 2002.
Notice of Motion No. M-65888, dated October 3, 2002, and filed October 7,
Affirmation of Joseph F. Romani, AAG, in support of motion, dated October 3,
2002, with attached exhibits.
"Answering Affirmation" of Gregory Cendales, in opposition to motion, dated
October 5, 2002, with attached exhibits.
On April 18, 2001, Claimant alleges he was assaulted by correction officers
while handcuffed, shackled and in waist chains during a cell extraction in
Southport Correctional Facility (hereinafter "Facility"). On July 16, 2001,
Claimant served a Notice of Intention on the Attorney General's office by
certified mail, return receipt requested. (State's Exhibit C). On April 2,
2002, the Claim was filed with the Clerk of the Court. The Claim was served on
the Attorney General's office on September 12, 2002, by certified mail, return
In lieu of an answer, the State moves to dismiss on the grounds that service
was untimely pursuant to CCA 10 (3-b) which requires that a claim based upon
[s]hall be filed and served upon the attorney general within ninety days after
the accrual of such claim, unless the claimant shall within such time serve upon
the attorney general a written notice of intention to file a claim therefor, in
which event the claim shall be filed and served upon the attorney general
within one year after the accrual of such claim.
This Claim alleges assault and battery and medical negligence. However, the
State's motion addresses only the intentional tort cause of action and makes no
reference to the medical negligence cause of action. The Court will first
address the State's dismissal motion relating to the intentional tort and then
discuss the alleged medical negligence claim separately hereinbelow.
Assault and Battery
The CCA requires that claims alleging intentional torts be filed and served
within ninety days of accrual, unless a notice of intention is served within
ninety days of accrual, in which case the claim may be filed within one year of
accrual. (CCA 10 [3-b]). Here, since Claimant had served a Notice of Intention
alleging assault and battery within the ninety-day statutory period, he had one
year or until April 18, 2002 to file and serve a claim. Obviously, Claimant's
service of the Claim on September 12, 2002 was beyond that one year period and,
as such, this Claim is untimely in that regard. In opposition, however,
Claimant asserts that Facility personnel purposefully delayed his legal mail
containing this Claim causing the untimeliness and, as such, the Court should
apply an estoppel argument in his favor.
It is a fundamental principle of practice in the Court of Claims that the
filing and service requirements contained in CCA 10 and 11 are jurisdictional in
nature and must be strictly construed. (Finnerty v New York State Thruway
Auth., 75 NY2d 721, 722-723). It is well-settled, however, that defects in
mailing by an inmate can result, upon proper proof, in an estoppel if the State
is the cause of the delay. (Wattley v State of New York, 146 Misc 2d
Claimant deposited legal mail with Facility officials on March 27, 2002, about
three weeks prior to the expiration of the one year period to file and serve a
claim based upon an intentional tort. In the first instance the Court notes
that it was Claimant's responsibility to allow enough time for potential trouble
in the processing of his legal mail knowing the intricacies of the prison mail
system. The difficulties encountered by Claimant only serve to demonstrate the
wisdom behind the adage "leave time for trouble". (Siegel, NY Prac § 33,
at 40 [3d ed]). That having been said, the Court will attempt to examine the
sequence of events after Claimant deposited his legal mail with Facility
officials to determine if the State was the cause of the delay. Claimant
submits a letter he sent to the Clerk of the Court dated May 12, 2002 requesting
assistance with this matter. (Claimant's Exhibit B). The Court's file contains
several documents that were originally attached to that letter, but which are
not included with Claimant's motion papers, namely an Authorized Advance Request
form; Facility notice dated March 28, 2002; and a Facility notice dated April 1,
2002 which will now be designated Court exhibits for purposes of this
(Court Exhibits 1, 2, and 3,
Claimant submitted an "Authorized Advance Request" form dated March 27, 2002 in
order to request an advance for legal mail. (Court Exhibit #1). Said form
contained the following handwritten notation:
Return Receipt Requested"
Pursuant to Chapter 466
Required by Court of Claims Act -Section 10
(Court Exhibit #1).
Next, is a Facility mail room notice dated March 28, 2002 which rejected
Claimant's request for the following reason:
ADVANCES FOR SPECIAL HANDLING:
This allowance may not be used to pay for any special handling
charges such as for certified, return-receipt, express mail, etc. unless such
mail services are required by statute or court rule. Advances for special
handling for filing a Claim or Notice of Intention on the Attorney General's
Office must be specified on the approved Advance Request form for postage. You
must state why you are requesting special handling on the advance form or
provide a copy of court order . (4421).
(Court Exhibit 2; emphasis in original).
After receiving this rejection notice Claimant revised his Authorized Advance
Request form and submitted it for a second time the following day. As Claimant
himself explains in his letter to the Clerk of the Court:
she in-turn sent it back to me with an attached form highlighting that I must
state why I was requesting special handling or produce a court order for such,
such was originally and already done as I had written such reason on the
"advance form" by stating the chapter it was pursuant to which is in itself
the reason why the special handling was requested.
I further expounded upon the reason the following day mail was eligible to go
out by also stating what section of the Court of Claims Act this was required
(Claimant's Exhibit B; emphasis added).
In other words, Claimant explains his original Authorized Advance Form
contained the notation "Certified Mail, Return Receipt Requested-Pursuant to
Chapter 466", which he revised on his second attempt by adding "Required by
Court of Claims Act -Section 10".
The Facility rejected Claimant's second request in a notice dated April 1, 2002
with the instruction: "OTHER:
Not all mail to A.G. is required to
be certified." (Court Exhibit #3). Claimant became exasperated after this
second rejection and concluded that the mail room was attempting to sabotage his
requests. Thereafter, Claimant asked for assistance from another
the Clerk of the
and ultimately a law firm in attempting
to serve the Attorney General's office.
Based upon this record, this Court finds that Claimant himself was the cause of
the delay by failing to specifically state to the mail room that his legal
package contained a claim. Claimant's first notation containing only a
reference to "chapter 466" was obviously vague as it could relate to any law,
session and/or year. Claimant's second attempt to add a reference to Court of
Claims Act section 10 provided more information but still failed to represent
that his package contained a claim. Requiring Facility mail room personnel to
guess what is in a package or to speculate on the meaning of various messages
from inmates would set a dangerous precedent. In sum, in this Court's view, the
doctrine of estoppel is not applicable on the facts presented because of
Claimant's own initial delay and his failure to specifically describe the
contents of his legal mail.
As such, having found the doctrine of estoppel inapplicable, the Court finds
that Claimant has failed to comply with CCA 10 (3-b) which requires that a claim
alleging intentional torts shall be filed and served upon the attorney general
within one year after the accrual of such claim. The service of the Claim on
September 12, 2002 was beyond such time period. As such, to the extent that
this Claim contains allegations of intentional torts such as assault and
battery, it is dismissed due to Claimant's failure to comply with CCA 10 (3-b).
To the extent that this Claim also contains allegations of medical negligence,
such allegations are governed by CCA 10 (3) which states that claims in the
Court of Claims are required to be filed and served within ninety days of
accrual, unless a notice of intention is served within ninety days of accrual,
in which case the claim may be filed within two years of accrual. In other
words, if Claimant's Notice of Intention properly particularized a medical
negligence claim then Claimant would still have time to serve the claim as the
two-year period from accrual has not yet expired. However, a close examination
of Claimant's Notice of Intention reveals that it fails to particularize the
nature of the alleged medical negligence, rather the only reference to any
medical claim is the following allegation: "[t]he state is at fault due to it's
negligence and outright malicious actions of it's employee's [sic].
And medical staff." (State's Exhibit C; emphasis added). The Court
finds that the Notice of Intention is patently inadequate with respect to any
alleged medical negligence claim and, as such, was insufficient to extend
Claimant's time within which to file and serve a claim containing allegations of
Accordingly, for the reasons stated above, it is ORDERED that the State's
motion to dismiss, Motion No. M-65888, is GRANTED and Claim No. 105843 is
Binghamton, New York
HON. FERRIS D. LEBOUS
Judge of the Court
A fourth attachment which was a letter from
the Clerk of the Court is not relevant to this motion.
According to Claimant a neighboring cell
inmate offered to send out his mail on his behalf, but Claimant indicates that
due to a relocation he found out later that no proper receipt had ever been
received. Thereafter Claimant sought the assistance of the Clerk's office and
ultimately the assistance of a law firm in achieving service on the Attorney
General's office. When service was finally achieved with the assistance of the
law firm it was beyond the applicable statutory time period.
The Clerk of the Court properly rejected
Claimant's request that the Court serve the claim on his behalf.