New York State Court of Claims

New York State Court of Claims

NEAL v. STATE OF NEW YORK, #2003-018-234, Claim Nos. 106248-A, 107528, Motion No. M-66735


Synopsis


Defendant's motion to dismiss both claims is granted based upon Court of Claims Act §§ 10, 10(9) and 11.

Case Information

UID:
2003-018-234
Claimant(s):
CHRISTOPHER NEAL
Claimant short name:
NEAL
Footnote (claimant name) :

Defendant(s):
STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
106248-A, 107528
Motion number(s):
M-66735
Cross-motion number(s):

Judge:
DIANE L. FITZPATRICK
Claimant's attorney:
CHRISTOPHER NEALPro Se
Defendant's attorney:
ELIOT SPITZER
Attorney General of the State of New York
By: JOEL L. MARMELSTEIN, ESQUIREAssistant Attorney General
Third-party defendant's attorney:

Signature date:
July 9, 2003
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision
Claimant has two claims pending each seeking reimbursement for loss of personal


property while he was an inmate at Ogdensburg Correctional Facility. The first claim

(#106248-A) was filed on June 19, 2002 and the second (#107528) was filed on March 24, 2003.

A Notice of Intention to file a claim dated May 20, 2002 and regarding the same lost property

was served upon the Attorney General's office on May 28, 2002. The defendant brings a motion

to dismiss both claims for lack of jurisdiction. Claimant opposes the motion.

CLAIM #106248-A
Defendant argues that the Court lacks personal and subject matter jurisdiction over this claim because the claim was served by regular mail, not in accordance with Court of Claims Act §§ 10 and 11. To support this position, defendant attached the envelope in which the claim was received by the Attorney General's office. It bears no indication that it was sent certified mail return receipt requested as required by statute. Additionally, defendant contends that this claim must be dismissed for failure to comply with Court of Claims Act § 10(9) which requires that an inmate must exhaust all administrative remedies established by the correctional facility for addressing lost property claims before an inmate can file a claim for the loss.

Claimant does not dispute the improper service of Claim No. 106248-A. It is well- established that service of a claim upon the Attorney General by ordinary mail is insufficient to acquire jurisdiction over the State and warrants dismissal of the claim (
Byrne v State of New York, 104 AD2d 782, 783, lv denied 64 NY2d 607).
However, even if the documentation is insufficient to show service of the claim was by regular mail, the claim would still have to be dismissed for failure of claimant to exhaust his administrative remedies pursuant to Court of Claims Act § 10(9). The Department of Correctional Services has established a system for handling inmate personal property claims consisting of an initial review and an appeal (7 NYCRR 1700.3). At the time claimant served and filed this claim, he had not exhausted his administrative remedies because the decision on his appeal was pending.[1]
The failure to comply with the requirements of the Court of Claims Act requires dismissal of the claim (Tafari v State of New York , Ct Cl, unpublished decision of J. Lebous, dated December 9, 2002, Claim No. 106576, Motion No. M-65889, UID #2002-019-591).))))[)]
Claim #107528
This claim also fails to comply with Court of Claims Act § 10(9). The Court finds November 12, 2002
,[2] as the date claimant's administrative remedies were exhausted. Pursuant to the statute, claimant had 120 days from that date to file and serve his claim. Therefore, claimant had until March 12, 2003, to file and serve the claim. Claimant submitted documentation on the issue of timeliness which only proves defendant's contention. The certified mail receipt attached to claimant's response to this motion indicates that the claim was mailed on March 13, 2003, a day late.[3] Compliance with the time frames set forth in Court of Claims Act § 10 constitutes a jurisdictional prerequisite to the commencement and maintenance of a claim against the State (Buckles v State of New York, 221 NY 418; Byrne v State of New York, 104 AD2d 782). The Court is without authority to disregard the failure to comply with the statutory time frame.
There is no benefit to claimant's service of a notice of intention in this instance since Court of Claims Act § 10(9) does not authorize service of a notice of intention to extend the time for service and filing of a claim for an inmate's personal property loss.

Based upon the foregoing, the defendant's motion is GRANTED to the extent that claims numbered 106248-A and 107528 are hereby DISMISSED. The defendant's motion for consolidation is DENIED as unnecessary and moot.


July 9, 2003
Syracuse, New York

HON. DIANE L. FITZPATRICK
Judge of the Court of Claims


The Court has considered the following documents in deciding this motion:


Notice of Motion.................................................................................................1


Affirmation of Joel L. Marmelstein, Esquire, Assistant Attorney General

in support, with exhibits attached thereto................................................2


Affidavit of Christopher Neal, Pro Se, in opposition..........................................3


Filed Documents:


Claim No. 106248-A...........................................................................................4


Claim No. 107528...............................................................................................5


[1]On the facility claim form, attached as Exhibit E to defendant's motion, it indicates that the appeal was denied on June 27, 2002. Defendant, however, argues that the appeal should not have been heard by the superintendent, based upon the Department of Correctional Services' Directive 2733(II)(B), which according to defendant requires that any appeal for loss of personal property in excess of $500 be heard by the Division of Program Services, Office of Inmate Accounts. The appeal from the Division of Program Services was not completed until October 28, 2002 (Exhibit H of defendant's motion). In any event, both appeal reviews were completed after claimant served Claim No. 106248-A.

[)]))))

Most unpublished decisions of the Court of Claims are available on the internet at www.nyscourtofclaims.state.ny.us/decisions.

[2]

Defendant asserts this is the date claimant received his appeal determination. Claimant does not dispute the date, and the determination is dated October 28, 2002 (Exhibit H of defendant's motion).

[3]

Claimant also attaches a receipt evidencing that documents were also forwarded to the St. Lawrence County Attorney by certified mail on March 12, 2003. Even if claimant's claim was mailed to the attorney general on the same date, it would still be untimely. Court of Claims Act § 11(a)(i) provides that service is complete only when the claim is "received in the office of the attorney general," which was not until March 17, 2003, well beyond the 120 days.