New York State Court of Claims

New York State Court of Claims

SCALES v. THE STATE OF NEW YORK, #2003-030-013, Claim No. 105600


Pro se inmate's Claim dismissed for lack of jurisdiction. Did not establish service of claim upon Attorney General.

Case Information

ANTHONY SCALES Caption has been amended to reflect the only proper defendant.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
Caption has been amended to reflect the only proper defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):

Cross-motion number(s):

Claimant's attorney:
Defendant's attorney:
Third-party defendant's attorney:

Signature date:
April 8, 2003
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)

Anthony Scales, the Claimant herein, alleges in Claim Number 105600 that Defendant's agents failed to provide him with adequate and timely medical and dental care while he was incarcerated at Sing Sing Correctional Facility (hereafter Sing Sing). Trial of the matter was scheduled to proceed on March 7, 2003.

On March 7, 2003, Defendant made a motion to dismiss the claim based upon its seventh affirmative defense, a failure to properly serve the claim upon the Attorney General, pursuant to Court of Claims Act §11.
The claim was served on the Attorney General by regular mail, as established by Counsel's submission of an envelope showing that the enclosures were sent regular, not certified mail. [See, State's Exhibit "A"]. The envelope with enclosures is stamped received by the Attorney General's Office on February 11, 2002. [Ibid]. The affidavit of service included with the Claim filed with the Court of Claims, indicates that the Claim was served "via US mail with the Clerk of the N.Y.S. Court of Claims and the Attorney General of NYS," and is dated January 31, 2002. The Claim was filed in the Office of the Chief Clerk of the Court of Claims on February 13, 2002.
On the trial date, Claimant could not furnish proof of service of the Claim upon the Attorney General's Office, nor did he have documents that would assist him in proceeding to trial when the Court indicated it would reserve on Defendant's motion to dismiss. Accordingly, the Court granted an adjournment, and directed the Claimant to provide proof of service by certified mail, return receipt requested on the Attorney General by March 28, 2003 .

The Court is in receipt of a letter from Claimant with some attachments, dated March 24, 2003. In his letter Claimant indicates that he was able to locate his monthly statement for the month of January, 2002, and discerned that "...on January 9th,[2002] $3.95 was deducted for postage,
‘combine' this with the $1.85 free postage inmates receive and you'll see I was correct. The sum total would be $5.80. I believe what happened is, as I stated, the correspondence dept. simply used the 1.85 state fund, added their own stamp, and deducted full cost any way. Apparently they figured I wouldn't notice the difference. But this is only one of many ways inmates are ripped off. Above you will also note on the same day, 1.03, postage fee, so it had to be legal mail as well. You will see too, postal advance 3.95 U.S. Dist Court, imposed on 1/30/02, this was for certified mail also, so it shows the same as on 1/09/02 which was also for certified mail, in both instances, but for two separate cases, one Court of Claims, the other U.S. Dist Ct. you will also see, that $1.80 was again taken in conjunction with the $3.95 as above, but instead of using the ‘free postage' they took it from my inmate payroll...."

The Court has reviewed the inmate statement Claimant has attached, and notes that there are withdrawals marked postage on January 8, 2002 for $1.03; January 9, 2002 for $3.95 and $1.03; and January 15, 2002 for $1.26. Under a section identified as "postage advance", there is an indication of the expenditure of $3.95 on January 30, 2002 referencing "US Dist Court." The Court notes that the Claim filed with this Court was signed and verified before a Notary Public on January 31, 2002.

The filing and service requirements contained in Court of Claims Act §§10 and 11
are jurisdictional in nature and must be strictly construed. Finnerty v New York State Thruway Auth., 75 NY2d 721, 722-723 (1989). Service upon the Attorney General by ordinary mail is generally insufficient to acquire jurisdiction over the State, unless the State has failed to properly plead jurisdictional defenses or raise them by motion. Court of Claims Act §11(c); Edens v State of New York, 259 AD2d 729 (2d Dept. 1999); Philippe v State of New York, 248 AD2d 827 (3d Dept 1998). Additionally, the Claimant has the burden of establishing proper service. [Boudreau v Ivanov, 154 AD2d 638, 639 (2d Dept. 1989)] by a preponderance of the evidence See, Maldonado v County of Suffolk, 229 AD2d 376 (2d Dept. 1996). Regulations require that proof of service be filed with the Chief Clerk within ten (10) days of service on the defendant. 22 NYCRR § 206.5(a).
Here, the State's Verified Answer pleaded this defense with particularity, preserving the issue for review. Claimant has failed to establish as directed that the Claim was served upon the Attorney General by certified mail, return receipt requested. The inmate fund account information shows only that postage monies were expended from Claimant's funds on certain days before the Claim was signed and verified, thus belying Claimant's assertion that these were monies expended to mail the Claim at issue. Accordingly, this Court does not have jurisdiction over the Claim because Claimant has failed to serve the Claim as required upon the Attorney General. Defendant's motion to dismiss is granted, and Claim Number 105600 is hereby dismissed in its entirety.

Let Judgment be entered accordingly.

April 8, 2003
White Plains, New York

Judge of the Court of Claims