This claim seeks compensation for an alleged additional eleven months of
incarceration that resulted from the negligence of the Division of Parole, when
it failed to give claimant timely notice of its August 13, 1999 determination
extending his sentence for a parole violation. Claimant alleges that his claim
accrued on July 5, 2000, apparently at the conclusion of the eleven months. A
notice of intention to serve a claim was served on the Attorney General on
October 10, 2000, and the claim was subsequently served on March 28, 2001.
Defendant now moves for an order dismissing the claim on the ground that it was
untimely. The defense of untimeliness was raised in defendant's answer with
sufficient particularity to meet the requirement of section 11(c) of the Court
of Claims Act.
Section 10(3) of the Court of Claims Act requires that claims based on
allegations of negligence must be commenced by service of a notice of intention
or filing and service of a claim within ninety days after a claim accrues.
Taking the last possible date of accrual, the date asserted by claimant himself,
October 10, 2000 was 97 days after July 5, 2000. Failure to comply with the
time and manner of service requirements contained in sections 10 and 11 of the
Court of Claims Act is a fatal jurisdictional defect and deprives this court of
the power to hear the claim (Dreger v New York State Thruway Auth.
NY2d 721, 724 ; Bogel v State of New York
, 175 AD2d 493 [3d Dept
In opposition to the motion, claimant has submitted an affidavit stating that
he placed the notice of intention in the prison facility mailbox on September
29, 2000, which would presumably have allowed it to reach the Attorney General
within ninety days if promptly processed. Claimant states that the notice of
intention was returned, however, and ultimately was not processed until after he
sent a letter of complaint, dated October 5, 2000, to the Deputy Superintendent
of Programs. He asks, therefore, that defendant be estopped from raising the
defense of untimeliness.
In the past, judges of this Court have recognized and applied the doctrine of
equitable estoppel where a claimant's failure to comply with time, service or
verification requirements can be attributed to State officials' failure to
provide accurate information or, in the context of prisoner pro se
claims, failed to carry out the inmate's clear, documented intention to comply
with the jurisdictional requirements (see, e.g., 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]).
Recently, however, the Third Department has held that this cannot be allowed
(Rodriguez v State of New York, 762 NYS2d 836, 837 [3d Dept 2003]). In
Rodriguez, the inmate claimant asserted that he had requested and paid
for service by certified mail, return receipt requested (Court of Claims Act
§11[a]), but the appellate court affirmed dismissal of the claim.
Since this defect in service is jurisdictional, we find no merit to claimant's
contention that defendant is estopped from claiming a lack of jurisdiction
because the state's prison officials, who control his mail, failed to effectuate
the certified mailing that he requested and paid for. A lack of subject matter
jurisdiction is a defect that cannot be overlooked or remedied by either waiver
(id, at 387, citing to Finnerty v New York State Thruway Auth.,
721, 723 ; Pagano v New York State Thruway Auth.
, 235 AD2d 408, 408
[2d Dept 1997], lv denied
90 NY2d 804).
Furthermore, unlike the Federal courts, New York does not employ the "mail box
rule," whereby an inmate's legal papers are deemed to be served at the time that
they are placed into a prison mail depository (Espinal v State of New
, 159 Misc 2d 1051 [Ct.Cl. 1993], accord Philippe v State of
, 248 AD2d 827, 828 [3d Dept 1998]).
Defendant's motion is granted and Claim No. 103499 is dismissed.
Because untimeliness is a jurisdictional
defect that cannot be waived by the State or overlooked by the Court, claimant's
statements characterizing defendant's motion to dismiss the claim on this basis
as "fraudulent," "without merit," or "dumb" and "stupid" (Smith affidavit,
¶ 2 & 3) are frivolous and highly improper.
In the decision on appeal in
, the possibility of equitable estoppel was accepted by the
trial court but it determined to be inapplicable because there was insufficient
proof that the inmate had taken all steps he was required to take in order to
effect proper service (Rodriguez v State of New York
Claim No. 105422, Motion Nos. M-64920, CM-64951, June 6, 2002, McNamara,