New York State Court of Claims

New York State Court of Claims

WILLIAMS v. THE STATE OF NEW YORK, #2003-032-082, Claim No. 107314, Motion Nos. M-66805 , CM-66867


A claim that was served by regular mail is dismissed, despite claimant's effort to assert that the State's own actions were responsible for his inability to use CMRRR. Noting that there is dispute in authority as to whether whether equitable estoppel could be applied to prevent the State from raising a defense based on the jurisdictional requirements of the Court of Claims Act, the Court finds that, in any event, the elements necessary for estoppel are not met in this case.

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:
Charles Williams, Pro Se
Defendant's attorney:
Hon. Eliot Spitzer, NYS Attorney GeneralBy: Kathleen M. Resnick, Esq., Assistant Attorney General, Of Counsel
Third-party defendant's attorney:

Signature date:
August 25, 2003

Official citation:

Appellate results:

See also (multicaptioned case)


This claim for personal property loss arose at Upstate Correctional Facility in May 2002, when it is alleged claimant turned over possession of 46 books and 26 magazines to correction officials. These items were supposed to be given to claimant's wife at the time of her upcoming visit. Shortly before the visit, claimant had been told that he had an excess number of books and magazines in his cell and that he had to get rid of them by either destroying them, donating them, sending them home through the mail, or giving them to one of his visitors. Claimant elected to donate some of his books and magazines and send home the remainder by having them delivered to his wife when she visited. Claimant alleges that they were never given to his wife and were lost. In its answer, the State alleged as its first affirmative defense, that the Court lacks subject matter jurisdiction of the claim because it was not served in compliance with section 11(a) of the Court of Claims Act "in that the claim was delivered by regular mail instead of served personally or by certified mail, return receipt requested" ("CMRRR") (Answer, ¶3). This statement is sufficiently particular to satisfy the pleading requirement of section 11(c). Claimant's motion for an order " allowing claimant to proceed on the merits of his claim" is, in fact, a motion to strike this affirmative defense. Defendant's cross motion seeks dismissal of the claim on the basis of this alleged jurisdictional defense.

In his motion papers, claimant acknowledges that section 11(a) requires service to be effected either in person or by CMRRR but states that "excusable circumstances apply herein" (Williams Affidavit, ¶4). He explains that in order to send an item by CMRRR, it is necessary for an inmate to submit a request for a CMRRR slip (also referred to as a card) from the law library. The slip is then picked up by a Correction Officer and delivered to the inmate the following evening. Claimant states that although he made numerous requests for these cards "there were no certified mail return receipt materials available as required" (id, Argument, Point 2). In support of his motion, claimant has submitted the affidavit of another inmate, David C. Moore, who states that he, too, had requested certified mail receipts and never received them (id, Exhibit).

In support of defendant's cross-motion, Correction Officer James Bennett, the Law Library Officer at Upstate Correctional Facility, has submitted an affidavit in which he states that his records show that claimant requested CMRRR slips on eight occasions within the relevant time period (Nov. 15 and Dec. 29, 2002; Jan. 3, 5, 7, 8, 10, and 23, 2003) and that he received them on three occasions (Nov.15 and Dec. 20, 2002 and Jan. 10, 2003) (Resnick affirmation, Exhibit B). Claimant, however, has submitted copies of five Upstate Correctional Facility Law Library Memoranda, each indicating that the library was "currently out" of CMRRR slips and asking the person making the request to "please resubmit" (Williams Affidavit in Opposition, Exhibit A). The dates of these five slips are Jan. 10, 13, 19, 25, and 28, 2003. These exhibits alone establish that there is a factual dispute regarding when and how often claimant requested CMRRR slips and when and how often he was able to obtain them. Depending on the number of items for which he needed these slips during the relevant time period, it is at least possible that the periodic, one might say frequent, unavailability of these slips prevented claimant from being able to serve his claim by CMRRR. The critical issue, however, is whether this could provide some type of "excuse" for claimant's use of an admittedly improper form of service.

The Court has no dispute with the legal authority presented by defense counsel, all of which establishes that the time and manner of service requirements of the Court of Claims Act are jurisdictional in nature, must be strictly construed, and may not be waived if raised, with sufficient particularity, in defendant's answer or made the subject of a pre-answer motion (see, e.g., Dreger v New York State Thruway Auth., 81 NY2d 721, 724 [1992]; Finnerty v New York State Thruway Auth., 75 NY2d 721 [1989]; Bogel v State of New York, 175 AD2d 493 [3d Dept 1991]). What defense counsel does not address, however, assuming that claimant's allegations are true, is whether the State would be estopped from asserting the defense of improper service, because the State's own actions would have caused claimant to serve the State in an inappropriate manner.

As a general proposition, estoppel is not applicable to a governmental entity when it is performing governmental actions (Daleview Nursing Home v Axelrod, 62 NY2d 30 [1984]). The Court of Appeals has recognized, however, that in certain unusual situations the government may be equitably estopped, particularly when wrongful behavior on the part of government officials prevents citizens from complying with certain fixed, procedural requirements (see, Bender v New York City Health and Hospitals Corp., 38 NY2d 662, 668 [1976][actions of government misled litigant who served General Municipal Law §50-e notice on the City rather than City Health and Hospitals Corp.]; People v Thomas, 47 NY2d 37 [1979][prosecutor's actions caused defendant to miss the deadline for filing an appeal]).

Equitable estoppel has been applied against the State in Court of Claims practice in this manner on a few occasions (see, Jacobs v State of New York, 193 Misc 2d 413 [Ct Cl 2002][lack of notary services in prison made complete verification impossible]; Stroud v State of New York, 184 Misc 2d 876 [Ct Cl 2000][DOCS memorandum caused inmate to file in an untimely fashion]; Francis v State of New York, 155 Misc 2d 1006 [Ct Cl 1992] [process server misled by Attorney General's office regarding proper person to serve]; Wattley v State of New York, 146 Misc 2d 968 [Ct Cl 1990][inmate signed and paid for CMRRR service but prison officials negligently used regular mail]; Caprio v State of New York, #2003-015-323, Claim No. 103245, Motion Nos. M-66272, CM-66383, Collins, J., May 28, 2003 [a stipulation by the State and subsequent course of conduct estopped it from raising a defense based on lack of verification]).
In order for estoppel to apply there must be a showing that the governmental unit involved wrongfully conducted itself, that its conduct induced reliance by someone entitled to rely upon it, and the position of the party relying was changed as a result.
(Williams v State of New York, #2000-018-013, Motion No. M-61167, Fitzpatrick, J., May 18, 2000 [stipulation by the State and its subsequent course of conduct estopped it from raising a defense based on the Statute of Limitations].)

Interestingly, and rather confusingly, the appellate courts appear less certain about whether equitable estoppel can be applied against the State, at least when there has been noncompliance with the jurisdictional requirements of the Court of Claims Act (see, generally, Klopfle v New York State Thruway Auth., 177 AD2d 1059, 1060 [4th Dept 1991] and cases cited therein; see also Rodriguez v State of New York, __ AD2d __, 2003 WL 21756078 [3d Dept 2003]["A lack of subject matter jurisdiction is a defect that cannot be overlooked or remedied by either waiver or estoppel"]; Chapman v State of New York, 261 AD2d 814 [3d Dept 1999]["estoppel is not available against the State as a matter of policy"]; Pagano v New York State Thruway Auth., 235 AD2d 408 [2d Dept 1997] ["a lack of jurisdiction . . . cannot be cured by application of the doctrine of equitable estoppel"]; but see Selkirk v State of New York, 249 AD2d 818 [3d Dept 1998][estoppel inapplicable because no showing that claimants relied on any fraud or misrepresentation by the State]; Klopfle v New York State Thruway Auth., 177 AD2d 1059, supra [declining to decide whether estoppel may be applied to excuse a claimant's failure to comply with service requirements]).

It is not necessary for the Court to decide, at this time, whether equitable estoppel is available, because in the situation presented here the necessary elements simply are not present. Although the officials at Upstate Correctional Facility may have breached their duty to provide an appropriate number of CMRRR slips for the inmates, they did nothing that led claimant to believe that he could safely serve his claim by regular mail. He was aware that the Court of Claims Act required CMRRR, and he was aware on November 26, 2002, when his administrative remedies were exhausted (see, Memorandum from Superintendent attached to claim) that he had 120 days, or until March 26, 2003 in which to commence his action (Court of Claims Act §10[9]). Whether one uses the dates indicated by Correction Officer Bennett or the dates indicated by claimant's exhibits, it is evident that claimant knew before the expiration of the 120 days that he might have a problem obtaining a CMRRR slip. There were, without doubt, several options available to claimant at that point, options that included explaining the problem to his inmate counselor or writing a letter to the Superintendent or the officer in charge of the Law Library. What he did, however, was to serve his claim by regular mail on February 10, 2003. Because he took no action to remedy the situation before serving his claim and did not even wait the full time allowed to him on February 10, 2003, claimant would be unable to prove that the actions of the State, rather than his own inaction, caused him to use regular mail service. In this instance, therefore, equitable estoppel could not apply.

Because the claim was not served personally[1] or by CMRRR, it is jurisdictionally defective and this Court does not have the power to entertain the lawsuit. Claimant's motion, which is deemed a motion to strike defendant's first affirmative defense is denied and defendant's cross-motion to dismiss the claim is granted.

August 25, 2003
Albany, New York

Judge of the Court of Claims

The following papers were read on claimant's motion "for an order allowing claimant to proceed on the merits of his claim" and on defendant's cross-motion for an order of dismissal:
1. Notice of Motion and Supporting Affidavit of Charles Williams, pro se, with annexed Exhibit

2. Notice of Cross-Motion and Supporting Affirmation of Kathleen M. Resnick, Esq., AAG, with annexed Exhibits

3. Affidavit in Opposition to the Cross-Motion (captioned "Notice of Cross-Motion") of Charles Williams, pro se, with annexed Exhibit

Filed papers: Claim; Answer

[1] The method for effecting personal service on the State is set out in CPLR 307 and requires that delivery must be made to an Assistant Attorney General at the Office of the Attorney General or to the Attorney General himself anywhere within the State. Claimant's argument that because the claim was delivered by an employee of the Postal Service it was personally served is unavailing.