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
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 (
, 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.