New York State Court of Claims

New York State Court of Claims

SMITH v. THE STATE OF NEW YORK, #2003-032-117, Claim No. 103499, Motion No. M-67457


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:
Marvin Smith, Pro Se
Defendant's attorney:
Hon. Eliot Spitzer, Esq., NYS Attorney General
By: Saul Aronson, Esq., Assistant Attorney General,Of Counsel
Third-party defendant's attorney:

Signature date:
December 18, 2003

Official citation:

Appellate results:

See also (multicaptioned case)


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., 81 NY2d 721, 724 [1992]; Bogel v State of New York, 175 AD2d 493 [3d Dept 1991]).[1]

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 or estoppel.

(id, at 387, citing to Finnerty v New York State Thruway Auth., 75 NY2d 721, 723 [1989]; Pagano v New York State Thruway Auth., 235 AD2d 408, 408 [2d Dept 1997], lv denied 90 NY2d 804).[2] 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 York, 159 Misc 2d 1051 [Ct.Cl. 1993], accord Philippe v State of New York, 248 AD2d 827, 828 [3d Dept 1998]).

Defendant's motion is granted and Claim No. 103499 is dismissed.

December 18, 2003
Albany, New York

Judge of the Court of Claims

The following papers were read on defendant's motion for an order of dismissal:
1. Notice of Motion and Supporting Affirmation of Saul Aronson, Esq., AAG, with annexed Exhibits

2. Affidavit in Opposition of Marvin Smith, pro se

Filed papers: Claim

[1] 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.

[2] In the decision on appeal in Rodriguez, 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, #2002-011-533, Claim No. 105422, Motion Nos. M-64920, CM-64951, June 6, 2002, McNamara, J.)