New York State Court of Claims

New York State Court of Claims

LOZIER v. THE STATE OF NEW YORK, #2003-019-559, Claim No. 107919, Motion No. M-67205


Synopsis


State's motion to dismiss granted due to claimant's failure to properly serve claim pursuant to CCA 11, as well as failure to comply with CCA 10 (9); Claim dismissed.

Case Information

UID:
2003-019-559
Claimant(s):
MICHAEL J. LOZIER The Court has sua sponte amended the caption to reflect the State of New York as the only proper defendant.
Claimant short name:
LOZIER
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :
The Court has sua sponte amended the caption to reflect the State of New York as the only proper defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
107919
Motion number(s):
M-67205
Cross-motion number(s):

Judge:
FERRIS D. LEBOUS
Claimant's attorney:
MICHAEL J. LOZIER, PRO SE
Defendant's attorney:
HON. ELIOT SPITZER, ATTORNEY GENERALBY: James E. Shoemaker, Assistant Attorney General, of counsel
Third-party defendant's attorney:

Signature date:
August 26, 2003
City:
Binghamton
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The defendant State of New York (hereinafter "State") moves for dismissal based upon claimant's alleged failure to properly serve this claim, as well as his failure to comply with CCA 10 (9). The court has not received any papers in opposition by or on behalf of claimant.


The Court has considered the following papers in connection with this motion:
  1. Claim, filed June 24, 2003.
  2. Notice of Motion No. M-67205, dated July 30, 2003 and filed August 1, 2003.
  3. Affirmation of James E. Shoemaker, AAG, in support of motion, dated July 30, 2003, with attached exhibits.
This claim alleges a bailment cause of action and, liberally construed, a medical negligence cause of action as well, both arising from damage to claimant's prescription eyeglasses suffered in his transfer from Elmira Correctional Facility to Clinton Correctional Facility in January 2003 and subsequent delay in obtaining an appointment with an eye doctor to receive new lenses.


The claim alleges that a Notice of Intention was served on the Office of the Attorney General on April 9, 2003. The Claim itself was served on the Office of the Attorney General on June 23, 2003 by regular mail and filed with the Clerk of the Court on June 24, 2003.


By way of this motion and in lieu of an answer, the State seeks dismissal on two grounds, namely claimant's failure to properly serve the claim, as well as his failure to comply with CCA 10 (9). The State contends that it received this claim on June 23, 2003 by regular mail, rather than by personal service or certified mail, return receipt requested, as required by CCA 11 (a). In support of this assertion, the State submits a copy of the envelope in which said claim was received which clearly denotes that it was sent by regular mail. Moreover, the court notes that the affidavit of service contained in the court's file does not indicate the method of service employed.


It is well-settled that the filing and service requirements contained in the CCA are jurisdictional in nature and must be strictly construed. (Finnerty v New York State Thruway Auth., 75 NY2d 721, 722-723). As such, it was claimant's burden to come forward to establish proper service which he has failed to do. (Commack Self-Serv. Kosher Meats v State of New York, 270 AD2d 687). The Court is without discretion to waive these requirements and, as such, the claim must be dismissed in its entirety due to claimant's failure to comply with CCA 11 (a).


Parenthetically, the court notes that the State's alternative argument is valid as well, namely that dismissal of the portion of the claim alleging a bailment cause of action is also warranted because of claimant's failure to comply with 10 (9). CCA 10 (9) mandates that:
[a] claim of any inmate in the custody of the department of correctional services for recovery of damages for injury to or loss of personal property may not be filed unless and until the inmate has exhausted the personal property claims administrative remedy, established for inmates by the department. Such claim must be filed and served within one hundred twenty days after the date on which the inmate has exhausted such remedy.

The State Department of Correctional Services (hereinafter "DOCS") has established a two-tier system for handling personal property claims consisting of an initial review and an appeal. (7 NYCRR 1700.3). Here, claimant's Inmate Claim Form shows he filed an initial review with DOCS relative to his damaged property claim which was disapproved. (7 NYCRR 1700.3 [a]). However, claimant has failed to come forward to establish that he pursued an appeal of the initial adverse decision which was available to him through DOCS. (7 NYCRR 1700.3 [b]). Consequently, claimant has not demonstrated that he has exhausted the available administrative remedies pursuant to CCA 10 (9) and, as such, may not yet pursue his claim in this venue.


Accordingly, for the reasons stated above, it is ORDERED that the State's motion to dismiss, Motion No. M-67205, is GRANTED and Claim No. 107919 is DISMISSED.


August 26, 2003
Binghamton, New York

HON. FERRIS D. LEBOUS
Judge of the Court of Claims