New York State Court of Claims

New York State Court of Claims

MACK v. THE STATE OF NEW YORK, #2003-030-534, Claim No. 107219, Motion Nos. M-66440, CM-66538


Pro se inmate's Claim alleging assault by correction officers dismissed. Claimant's motion to amend Claim denied; Defendant's cross-motion to dismiss the Claim for lack of jurisdiction granted. Although Notice of Intention served certified mail, Claim itself served regular mail.

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:
Third-party defendant's attorney:

Signature date:
April 25, 2003
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers, numbered 1 to 5, were read on Claimant's motion to amend Claim

Number 107219, and Defendant's Cross-Motion to dismiss the Claim:

1,2 Notice of Motion, Letter by Ray Mack, Claimant, dated February 20, 2003

3,4 Notice of Cross-Motion, Affirmation by Dewey Lee, Esq., dated March 13, 2003, and accompanying exhibits

5 Filed Papers: Claim, Answer.

After carefully considering the papers submitted and the applicable law the motions are disposed of as follows:

Ray Mack, the Claimant herein, alleges in Claim Number 107219 that defendant's agents assaulted him while he was an inmate within the custody of the New York State Department of Correctional Services, (hereafter DOCS) at Green Haven Correctional Facility (hereafter Green Haven). The alleged assault occurred on January 10, 2000. A Notice of Intention to file a Claim was served upon the Office of the Attorney General on February 18, 2000 by certified mail, return receipt requested. [Affirmation of Dewey Lee, Assistant Attorney General, Exhibit "A" ]. The Claim itself was served upon the Office of the Attorney General on January 17, 2003 by regular mail. [Ibid, Exhibit "B"].

Court of Claims Act §10(3-b) requires that a claim alleging an intentional tort by a State employee - if a Notice of Intention has been timely served - must be served and filed within one year of its accrual. As noted, the assault alleged herein occurred on January 10, 2000. Although the Notice of Intention to file a claim was timely served, the Claim itself was served well over the one year statute of limitations period. Additionally, the claim was improperly served upon the Attorney General by regular mail.

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); See, also, Welch v State of New York, 286 AD2d 496, 729 NYS2d 527, 529 (2d Dept 2001); Conner v State of New York, 268 AD2d 706, 707 (3d Dept 2000). Indeed, the statute provides in pertinent part "...[n]o judgment shall be granted in favor of any claimant unless such claimant shall have complied with the provisions of this section applicable to his claim...." Court of Claims Act §10.

Court of Claims Act §11(a) provides that "...a copy [of the claim] shall be served personally or by certified mail, return receipt requested, upon the attorney general..." within the time prescribed in Court of Claims Act §10; and service is complete when it is received in the Attorney General's office. Court of Claims Act §11(c). 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).

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 Claimant has not established that he served the Claim upon the Attorney General as required, and the Defendant has raised the jurisdictional issue in its Answer and by this motion. Indeed, the affidavit of service filed with the Claim does not even mention service of the Claim, but rather references an application for poor person relief, and other papers attached to the Claim, and does not indicate service by certified mail, return receipt requested upon the Attorney General. Accordingly this Court lacks jurisdiction over the Claim.

A pleading in the Court of Claims may be amended in accordance with the provisions of Civil Practice Law and Rules § 3025(b). See, 22 NYCRR § 206.7 (b). This does not mean however that a defect resulting in this Court's lack of jurisdiction over the Claim can be cured by seeking leave to amend it. Although leave to amend should be freely given, the determination is left to the sound discretion of the Court. The Court should consider whether there would be any prejudice to the opposing party; any effect an amendment would have on the orderly prosecution of the action; whether the moving party unduly delayed in seeking to add the new allegations; and whether the proposed amendment is palpably improper or insufficient as a matter of law. Where the proposed amendment lacks merit as a matter of law, or where amendment would be immaterial, among other things, the Court should deny leave based upon such legal insufficiency.

In this case, Claimant cannot avoid the expiration of the applicable statute of limitations period by seeking leave to amend his claim. Indeed, the Court cannot help but note that the four additional causes of action alleged are barred by the statute of limitations as well. [See, Letter by Ray Mack, Pages 3-6].

Accordingly, Claimant's motion [M-66440] to amend his Claim is in all respects denied, and Defendant's cross-motion [CM-66538] to dismiss the Claim is in all respects granted, and Claim Number 107219 is hereby dismissed in its entirety.

April 25, 2003
White Plains, New York

Judge of the Court of Claims