New York State Court of Claims

New York State Court of Claims

HAMMONDS v. GLENN S. GOORD, COMMISSIONER NEW YORK STATE DEPARTMENT 0F CORRECTIONAL SERVICES, #2002-032-014, Claim No. 106533, Motion No. M-65842


Synopsis


Prisoner property loss claim is dismissed on the ground of improper service.

Case Information

UID:
2002-032-014
Claimant(s):
EARL HAMMONDS
Claimant short name:
HAMMONDS
Footnote (claimant name) :

Defendant(s):
GLENN S. GOORD, COMMISSIONER NEW YORK STATE DEPARTMENT 0F CORRECTIONAL SERVICES
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
106533
Motion number(s):
M-65842
Cross-motion number(s):

Judge:
JUDITH A. HARD
Claimant's attorney:
Earl Hammonds, Pro Se
Defendant's attorney:
Hon. Eliot Spitzer, NYS Attorney GeneralBy: Eileen E. Bryant, Esq., Assistant Attorney General, Of Counsel
Third-party defendant's attorney:

Signature date:
November 21, 2002
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision
Defendant has moved to dismiss this claim for property loss, commenced by a State prison inmate, on the grounds that it is untimely and that the claim was improperly served.

The claim, which was filed on August 21, 2002, alleges that while claimant was incarcerated at Franklin Correctional Facility certain property of his was taken into the custody of the Department of Correctional Services (DOCS) as evidence for a disciplinary hearing. After the hearing, the hearing officer directed that the property be returned to claimant but, it is alleged, it had already been destroyed. Claimant alleges that his claim accrued on November 5, 2001, but other documents submitted on this motion make it clear that November 5, 2001 was the day the property was destroyed, not when claimant unsuccessfully demanded its return (
Heede Hoist and Machine Co. v Bayview Towers Apartments, 74 AD2d 598 [A cause of action for bailment accrues "when the bailor demands the property and the bailee refuses to deliver it"]). The property in question is not described in the claim, but its value is given as $599.00.
Annexed to the claim as an exhibit is a DOCS Inmate Claim Form filed by claimant in connection with the alleged loss of 20 identified items, primarily personal clothing, having a total value of $599.40. The form is stamped with two dates – March 1, 2002 and March 7, 2002 – but no date is given for the loss itself. This institutional claim was denied on March 26, 2002, with the following statement: "Hearing disposition stated items would be returned if you could prove ownership. No proof was provided, therefore, items were destroyed on 11/5/01." The portion of the form on which the outcome of any appeal would be listed is blank.

Defendant has raised the issues of improper service and untimeliness by way of a pre-answer motion, which is appropriate under section 11(c) of the Court of Claims Act. Court of Claims Act § 11(a) requires that a claim (or notice of intention if that device is used) must be served on the Attorney General either in person or by certified mail, return receipt requested. Claimants are not required to affirmatively plead that they have complied with this requirement. Instead, the State, which has immediate access to the relevant information, may raise non-compliance as an affirmative defense or move to dismiss on that ground (
see, Court of Claims Act § 11 [c]). In support of this portion of the motion, defense counsel has submitted a photocopy of the front and back of the envelope in which this claim was received (Bryant affirmation, Exhibit A). This photocopy shows that only regular postage was used.
Failure to comply with the time and manner of service requirements contained in sections 10 and 11 of the Court of Claims Act is a fatal jurisdictional defect and deprives this Court of the power to hear the claim (
Dreger v New York State Thruway Auth., 81 NY2d 721, 724; Bogel v State of New York, 175 AD2d 493). On this ground, therefore, the claim must be dismissed. Because of this ruling, it is not necessary to consider the other jurisdictional argument raised by defendant.
Defendant's motion is granted on the ground that the claim was improperly served, and the claim is dismissed.

November 21, 2002
Albany, New York

HON. JUDITH A. HARD
Judge of the Court of Claims


The following papers were read on defendant's motion to dismiss the claim based on untimeliness and improper service:
  1. Notice of Motion and Supporting Affirmation of Eileen E. Bryant, Esq., AAG, with annexed Exhibits A-B.
Affidavit in Opposition (none received)


Filed papers: Claim.