Rolando Oquendo, the Claimant herein, alleges in Claim number 102405, that
Defendant's agents negligently lost his personal property while he was
incarcerated in Sing Sing. Correctional Facility (hereafter Sing Sing). Trial
of the matter was to proceed at Sing Sing on January 8, 2002.
As an initial matter, Defendant made a motion to dismiss the claim based upon
its second affirmative defense, a failure to properly serve the claim, pursuant
to Court of Claims Act §11.
The claim was served on the Attorney General by regular mail, as established by
Counsel's submission of an envelope showing that the enclosures were sent
regular, not certified, mail.
Claimant indicated he had attempted to serve the claim certified mail, but that
his disbursement request was returned by Sing Sing personnel stamped
"insufficient funds", denying his right to have his legal mail forwarded despite
any lack of funds. He said he sent the claim to relatives in New York City for
them to serve the document, and they must not have understood how they were to
Deputy Superintendent for Security Connolly testified that the policy is to
forward any mail marked "legal mail" even if an inmate does not have funds. The
inmate is then advised in a separate writing that the facility is owed whatever
amount of money was advanced.
On January 8, 2002 the Claimant was unable to provide the disbursement receipt
showing the improper handling of his mail and, therefore, the Court dismissed
the Claim for a lack of jurisdiction. In its discretion, the Court suggested
that if he were able to find those receipts Claimant should forward them to the
Court for consideration of whether to restore the claim within thirty (30)
The Court has received two Disbursement or Refund Request forms from Claimant,
dated February 5, 2002 and marked "legal mail", which are stamped "insufficient
funds", but were, apparently, nonetheless approved for forwarding whatever legal
mail Claimant was sending out of Clinton Correctional Facility. Claimant argues
that these demonstrate that the disbursement form at issue here - presumably
from in or about April or May, 2000 - could have been stamped "insufficient
funds," and that the mail he attempted to send then was never sent as he
These enclosures simply do not establish what claimant hoped to establish.
First, they are not the disbursement forms for the mail at issue. Second, even
if they have probative value as to the practice within Clinton Correctional
Facility, they suggest that indeed legal mail is forwarded even when there are
insufficient funds, as indicated by Deputy
The filing and service requirements contained in Court of Claims Act
§§10 and 11 are jurisdictional in nature and must be strictly
construed. Finnerty v New York State Thruway Auth., 75 NY2d 721, 722-723
(1989). Service upon the Attorney General by ordinary mail is generally
insufficient to acquire jurisdiction over the State, unless the State has failed
to properly plead jurisdictional defenses or raise them by motion. Court of
Claims Act §11(c); Edens v State of New York, 259 AD2d 729 (2d Dept.
1999); Philippe v State of New York, 248 AD2d 827 (3d Dept 1998).
Additionally, the Claimant has the burden of establishing proper service.
Boudreau v Ivanov, 154 AD2d 638, 639 (2d Dept. 1989).
Here, the State's Verified Answer pleaded this defense with particularity,
preserving the issue for review. Accordingly, and as stated on the record on
January 8, 2002, and now reiterated based upon Claimant's failure to provide the
disbursement receipts requested, the claim was and is hereby dismissed in its
Let Judgment be entered accordingly.