New York State Court of Claims

New York State Court of Claims

LORUSSO v. THE STATE OF NEW YORK, #2002-028-010, Claim No. 105112, Motion No. M-64394


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: Kathleen M. Resnick, Esq. Assistant Attorney General
Third-party defendant's attorney:

Signature date:
March 1, 2002

Official citation:

Appellate results:

See also (multicaptioned case)


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 Exhibits 1-5;

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 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 mail[1] , 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 (Resnick Exhibit 1) a nullity (see, Baggett v State of New York, 124 AD2d 969). That flaw is whether Claimant has properly served a Notice of Intention at all. A properly executed affidavit[2] 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 (see, 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 another proceeding.[3] 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 after 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, i.e. the return receipt "green card", a hearing is neither warranted nor necessary.

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 jurisdiction.

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 entirety.

March 1, 2002
Albany, New York

Judge of the Court of Claims

[1] Unlike the Affidavit of Service for the Claim, there is no statement that the Notice of Intention to file a Claim was served by certified mail, return receipt requested as required by CCA § 11.
[2] A proper affidavit is a sworn statement which ordinarily begins with its venue, an opening statement, a recitation and a signature, subscribed and sworn to before a person authorized to administer oaths, usually a notary public. The notary public then attests with his own signature that the affidavit was "Sworn to before me this date" and is followed by the notary's stamp and number (see, Siegel, N.Y. Prac. § 205 [3d ed.]).
[3] The Court has compared the at -issue Notices of Intention (Resnick Affirmation, Exhibits 1 and 4) and finds that the documents are in fact one and the same.