New York State Court of Claims

New York State Court of Claims

GILL v. THE STATE OF NEW YORK, #2003-019-526, Claim No. 107212, Motion No. M-66445


State's motion to dismiss for failure to comply with CCA 10 and 11 granted; Claimant's attempt to invoke estoppel argument denied.

Case Information

Claimant short name:
Footnote (claimant name) :

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:
HON. ELIOT SPITZER, ATTORNEY GENERALBY: Carol A. Cocchiola, Assistant Attorney General, of counsel
Third-party defendant's attorney:

Signature date:
March 17, 2003

Official citation:

Appellate results:

See also (multicaptioned case)


In lieu of an answer, the State of New York (hereinafter "State") moves to dismiss pursuant to CPLR 3211. Claimant, an inmate appearing pro se, opposes the motion.

The Court has considered the following papers in connection with this motion:
  1. Claim, filed January 16, 2003.
  2. Notice of Motion No. M-66445, dated February 21, 2003, and filed February 24, 2003.
  3. Affirmation of Carol A. Cocchiola, AAG, in support of motion, dated February 21, 2003, with attached exhibit.
  1. Affidavit of Anthony G. Gill, in opposition to motion, sworn to February 25, 2003, with attachments.
  2. Reply Affirmation of Carol A Cocchiola, AAG, in support of motion, dated March 10, 2003, and filed March 13, 2003, with attached exhibit.
Claimant alleges that correction officers denied his requests for rest room breaks while he was in transit from a hospital to Elmira Correctional Facility (hereinafter "Facility") on October 17, 2002. The Claim further alleges that Claimant was caused to suffer mental anguish and embarrassment when he urinated on himself due to the aforesaid negligence of the State.

By way of this motion, the State contends that Claimant failed to serve a notice of intention or file and serve a claim within ninety days as required by Court of Claims Act (hereinafter "CCA") 10 and 11. This Claim accrued on October 17, 2002. Ninety days from said date of accrual is January 15, 2003. It is a fundamental principle of practice in the Court of Claims that the filing and service requirements contained in the CCA are jurisdictional in nature and must be strictly construed. (CCA 11; Finnerty v New York State Thruway Auth., 75 NY2d 721, 722-723). The burden of proof on the issue of compliance with CCA 11 is on the Claimant. (Boudreau v Ivanov, 154 AD2d 638). Here, it is clear that this Claim was filed in the Office of the Clerk on January 16, 2003 and served on the Attorney General by way of certified mail, return receipt requested, on January 17, 2003. As such, both the service and filing of the Claim were outside the ninety-day statutory period to do so, unless a notice of intention was served on the State within ninety days.

Claimant has failed to come forward to establish that he timely and properly served a notice of intention to extend his time to file and serve a claim. Instead, Claimant argues that Facility personnel purposefully delayed his legal mail containing this Claim causing the untimeliness and, as such, the Court should apply an estoppel argument in his favor. Generally, defects in mailing by an inmate can result, upon proper proof, in an estoppel if the State is the cause of the delay. (Wattley v State of New York, 146 Misc 2d 968). Claimant submits proof that he deposited legal mail with Facility officials on January 13, 2003, a mere two days prior to the expiration of his ninety-day period to file and serve a claim or serve a notice of intention based upon intentional tort. (CCA 10 [3-b]; see discussion infra, p 3). Quite simply, it was Claimant's responsibility to allow enough time for the processing of his legal mail knowing the intricacies of the prison mail system. The difficulties encountered by Claimant only serve to demonstrate the wisdom behind the adage "leave time for trouble". (Siegel, NY Prac § 33, at 40 [3d ed]). In other words, the Court finds that the delay, if any, was Claimant's own fault for waiting until the last minute to comply with the statute. Finally, Claimant's alternative argument that service is deemed completed upon delivery of his pleadings to prison officials is totally without merit. (CCA 11 [a]). As such, having found the doctrine of estoppel inapplicable, this Claim must be dismissed as untimely.[2]

Parenthetically, the Court notes that the Claim does not set forth a valid cause of action. In the first instance this Claim sounds in the nature of an intentional tort, rather than negligence, since "[a]llegations of intentional conduct cannot form the basis of a claim founded in negligence [citations omitted]." (Dunn v Brown, 261 AD2d 432, 433). Moreover, even if all these allegations were true, there is no cognizable cause of action for intentional infliction of emotional distress against the State due to public policy concerns. (Brown v State of New York, 125 AD2d 750,752, lv dismissed 70 NY2d 747; Augat v State of New York, 244 AD2d 835, lv denied 91 NY2d 814).

Accordingly, for the reasons stated above, it is ordered that the State's motion to dismiss, Motion No. M-66445, is GRANTED and Claim No. 107212 is DISMISSED.

March 17, 2003
Binghamton, New York

Judge of the Court of Claims

[1]Claimant's "Notice of Motion" contains nothing more than opposition arguments to the State's motion.
[2]Additionally, the Court notes that Claimant's reference in his Claim to a 120 day filing period contained in CCA 10 (9) applies only to inmate bailment claims and does not apply here. (Claim, ¶ 12).