New York State Court of Claims

New York State Court of Claims

OQUENDO v. THE STATE OF NEW YORK, #2002-030-014, Claim No. 102405


Inmate's bailment claim dismissed for failure to serve claim on Attorney General by certified

mail, return receipt requested.

Case Information

Claimant short name:
Footnote (claimant name) :

THE STATE OF NEW YORK Caption amended to reflect only proper defendant.
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:
Third-party defendant's attorney:

Signature date:
March 1, 2002
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


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 send it.

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) days.

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 described.

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 Connolly.[1]

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 entirety.

Let Judgment be entered accordingly.

March 1, 2002
White Plains, New York

Judge of the Court of Claims

[1] The Court notes that 7 NYCRR § 721.3(a)(3) concerning the handling of postage for inmates privileged correspondence, including legal mail, provides that "(v)Advances for ‘special handling' (e.g., certified mail, return receipt, express mail, etc.) will not be approved unless required by a statute, court rule or court order." Further, "(vii) No request for a legal mail advance will be denied by facility staff without prior consultation with the department's office of counsel. Any question whether a particular item qualified as ‘legal mail', or whether an advance is allowable should be directed to such office."