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 Court has considered the following papers in connection with this
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.
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