The following papers were read on Defendant's motion pursuant to CPLR
3211(a)(2), (7) and (8) to dismiss the Claim in its entirety:
1) Notice of Motion and Affirmation of Assistant Attorney General Kathleen M.
Resnick (Resnick Affirmation) filed December 4, 2001 with annexed
2) Opposition: NONE.
Filed Papers: Claim, filed October 25, 2001.
The Defendant seeks dismissal of the Claim by pre-answer motion on primarily
two grounds. The first, is that there is neither a timely filed Claim nor a
Notice of Intention extending the filing period, and the second, is that the
Claim fails to state a cause of action (Resnick Affirmation, ¶ 5).
Defendant asserts that the Notice of Intention which Claimant alleges was served
in January 2000 (see, Claim, ¶ 20), was in fact not served, but
rather is the identical Notice of Intention which Claimant did serve in
December 1999 prior to initiating Claim number 103563 (Resnick
Affirmation, ¶¶ 9 & 10), which claim is still pending before
the Court of Claims. Claimant has failed to oppose the instant motion.
Claimant is seeking damages flowing from the denial of two grievances he filed
regarding the lack of library services at Upstate Correctional Facility and his
"State and Federal Constitutional right to be incarcerated in a
facility/institution that has a law library" (Claim, ¶2). The first
grievance, dated August 20, 1999, reached its conclusion on November 3, 1999
(Claim, ¶ , Exhibit A). The second grievance, filed on June 15, 2000,
also "met with negative results" (Claim, ¶ 12). Claimant's sole cause of
action alleges a deprivation of "substantive due process of law and access to
the court" (Claim, ¶ 17). Given "the Federal magnitude of claimants claim"
punitive damages (Claim, ¶ 19) as well as compensatory damages are sought.
The instant Claim was filed in the Court of Claims on October 25, 2001. The
affidavit of service attached to the Claim and sworn to by Claimant before a
notary on September 13, 2001 states "on; this 26 day of October 2001 I have
served the within ‘claim' ... upon the Attorney General...as well as upon
the Clerk of the Court of Claims, via certified mail, return receipt requested"
(Claim, Affidavit of Service). The Notice of Intention to File a Claim,
likewise attached to the Claim, is dated December 1, 1999 and duly verified on
that date. Remarkably, its affidavit of service by
, also sworn to by claimant on December
1, 1999, alleges service one month later on January 2, 2000.
The Court begins its analysis with the familiar refrain that the requirements
set forth in Court of Claims Act § 11 are jurisdictional in nature and, as
such, must be strictly construed (see, Finnerty v New York State
Thruway Auth., 75 NY2d 721, 722; Commack Self-Serv. Kosher Meats v
State of New York, 270 AD2d 687; see also, Lichtenstein v State of New
York, 93 NY2d 911, 912-913 [applying same principles to requirements of
Court of Claims Act § 10]). The Court is not free to temper application of
a rule of law, whether done in the exercise of discretion, equity or because
there is no prejudice and a harsh result will be avoided (see, Martin v State
of New York, 185 Misc 2d 799, 804-805, collecting cases).
A review of the pleadings discloses no alleged action or wrong committed by the
Defendant in the 90 days prior to the filing of the Claim on October 25, 2001.
As such, the timeliness of the Claim is dependent upon the extension of time
provided by a properly served Notice of Intention. Thus, the Court must review
whether there has been compliance with Court of Claims Act § 11.
The Court does not need to address Defendant's argument that Claimant needed to
file a new and different Notice of Intention to initiate the instant Claim,
because there is a fundamental flaw which renders the Notice of Intention
Exhibit 1) a nullity (see
, Baggett v State of New
, 124 AD2d 969). That flaw is whether Claimant has properly served a
Notice of Intention at all. A properly executed
of service raises a presumption that
a proper mailing occurred (Engel by Engel v Lichterman
, 62 NY2d 943).
However, once jurisdiction and service of process are questioned, claimant has
the burden of proving satisfaction of statutory and due process prerequisites
, Stewart v. Volkswagen of America, Inc.
81 NY2d 203
[service of process pursuant to BCL § 307]). In order to effectively
question an affidavit of service, the Defendant must provide more than the mere
denial of the receipt of the pleading by mail to overcome the presumption of
delivery which attaches to a properly mailed letter but must assert probative
facts (see, Electric Insurance Company v Grajower
, 256 AD2d 833;
Fairmount Funding Ltd. v Stefansky
, 235 AD2d 213; East River Savings
Bank v Curtis
, 229 AD2d 999).
Here, Defendant has met its burden by a sworn denial of service of the Notice
of Intention and by identifying the Notice of Intention as having been served in
Moreover, the affidavit
of service, by omitting that the alleged mailing was by certified mail return
receipt requested, does not establish that the service was effected in
accordance with CCA § 11 (see
, Philippe v State of New York
248 AD2d 827; Edens v State of New York
, 259 AD2d 729). Most egregious
is the affidavit itself, which purports to attest to a mailing nearly one month
the affidavit was "sworn to". Under no circumstances will such a
submission be viewed by this Court as a "proper affidavit". In the ordinary
course, claimant would be entitled to a traverse hearing to establish the
propriety of service, however, where, as here, Claimant has failed to respond to
the motion and failed to produce any probative facts to demonstrate service,
the return receipt "green card", a hearing is neither warranted nor
On this record, with a falsified affidavit of service, the Court can not
conclude that service of the Notice of Intention was made at all, let alone
timely and properly (compare, Karanja v Karanja, 193 AD2d 718 [weight of
evidence established service in June 1982, thus discrepancy in date of service
was not jurisdictional defect]). The failure of Claimant to establish service
of the Notice of Intention is a fatal jurisdictional defect which renders
service of the Claim on October 24, 2001 untimely and deprives the Court of
Assuming arguendo, that the claimant had been able to overcome the false
affidavit he submitted, a remote possibility at best, his allegations fail to
state a cause of action cognizable in the Court of Claims. This Court does not
have jurisdiction to consider punitive damages as they are not permissible in
the Court of Claims (Sharapata v Town of Islip, 56 NY2d 332), nor does it
have the necessary jurisdiction to consider the Federal Constitutional claims
(Brown v State of New York, 89 NY2d 172, 184). Moreover, law libraries
and legal assistance programs do not represent constitutional rights in and of
themselves, but only the means to ensure reasonably adequate opportunity to
present claimed violations of fundamental constitutional rights to the
courts (see, Benjamin v Fraser, 264 F.3d 175, 185; Lewis v
Casey, 518 U.S. 343, 353). As such, there exists no free-standing tort for
money damages for alleged deficiencies in the Defendant's provision of a law
library or law library services (see, Gagne v the State of New York,
[unreported decision] Claim No. 98686, Motion No. M-63259, Patti, J., November
30, 2001; see also, Leach v Dufrain, 103 F.Supp.2d 542 [authorities may
regulate the time, place, and manner of library use]).
For the foregoing reasons, Defendant's motion to dismiss is granted.
Accordingly, Claim Number 105112 shall be and hereby is dismissed in its