New York State Court of Claims

New York State Court of Claims

GORDON v. THE STATE OF NEW YORK, #2003-032-133, Claim No. 105141, Motion Nos. M-67068, CM-67122


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:
Donovan Gordon, Pro Se
Defendant's attorney:
Hon. Eliot Spitzer, NYS Attorney GeneralBy: Eileen Bryant and Kathleen M. Resnick, Assistant Attorneys General, Of Counsel
Third-party defendant's attorney:

Signature date:
December 31, 2003

Official citation:

Appellate results:

See also (multicaptioned case)


This bailment claim arose on September 14, 2001, when claimant's property was sent to him in the Special Housing Unit (SHU) at Adirondack Correctional Facility. The claim alleges that two out of four property bags were missing and that he was later told by another inmate that a Correction Officer Layfay had been "giving away" his belongings.

The claim was filed with the Court of Claims on October 29, 2001. On January 2, 2002, the State filed an answer in the claim of Donovan Gordon v State of New York. This answer did not list a Claim Number but carried a number designated by the Office of the Attorney General: OAG 01-015037-0. The Court of Claims Clerk's office paired this answer with Claim No. 105141, because that was the only outstanding claim by this claimant and because it was evident that the answer related to a bailment claim.[1]

Claimant was not required to file a note of issue to indicate when the matter was ready for trial because this claim is on the prisoner pro se calendar (Rule 206.12 of the Uniform Rules for the Court of Claims, 22 NYCRR §206.12). Approximately a year and a half after the answer was filed, the Court sent a letter informing the parties that trial would be held at Clinton Correctional Facility on August 7, 2003. (The trial was subsequently adjourned to September 29, 2003). In response to that notification, claimant moved for an order directing the production of Correction Officer Layfay as a witness at that trial and defendant cross-moved for dismissal of the claim on the ground that the Attorney General had never been served. Because the trial date was rapidly approaching and because the Court's records indicated that the State had answered the claim, it was agreed that the officer would be produced as a trial witness, the matter would be tried, and a decision on the cross motion to dismiss would be reserved until after trial was held.

In her sur-reply, defense counsel has described and included copies of all documents that were in the possession of the Attorney General from or relating to the claim of Donovan Gordon:

1) Letter from the Court of Claims dated November 14, 2001 and acknowledging receipt, on October 29, 2001, of a claim designated Claim No. 105141. This document was given OAG No. 01-014823-0 (Resnick Sur-Reply, Exhibit A).

2) Letter from claimant, dated November 19, 2001 and received November 23, 2001, which was accepted as a claim by the Attorney General because it had been mailed by certified mail, return receipt requested. This document was given OAG No. 01-015037-O (id, Exhibit C).

3) Defendant's Verified Answer served in response to the November 23, 2001 letter from claimant, #2 above (id, Exhibit D).

The claim that was filed with the Court and assigned Claim No. 105141 (hereinafter referred to as the "claim") and the letter-claim received approximately a month later by the Attorney General (hereinafter referred to as the "letter claim") look entirely different. The claim is on a one-page (front and back) pre-printed form to which a "List of Items Lost" is annexed and carries a proper caption. In contrast, the letter-claim is a handwritten letter, five pages long and begins with an inside address and the salutation "Dear Mr. Spitzer". The content of the first four pages of the letter claim is very different from the claim, although the fifth and final page contains allegations that are almost identical to those set forth in the claim.

The substantive portion of the claim reads as follows:
On Sept. 14th, 2001 my things were sent to me over in S.H.U. when it got there I noticed that out of the (4) bags & (2) box[es] that I had only (2) bags and the (2) box[es] came over to the S.H.U. box. The (2) box[es] contained my books & clothing & the (2) bags had more books and my law work, but the (2) missing bags is the (2) that contained my [list of items inserted]. On my way to Gouverneur S. Block S.H.U. a prisoner from the same house that I was coming from told me that Officer La-Fay was giving away my things. [list of items attached]
The final portion of the letter-claim reads as follows:

On September 14th, 2001 my things were sent to me over in S.H.U. and when it got there I noticed that out of (4) bags & (2) box[es] that I had only (2) bags and the (2) box[es] came over to the Adirondack S.H.U. The (2) box[es] contained my books & clothing & the (2) bags had more books and my law work, but the (2) missing bags is the (2) that contained my [list of items inserted].
The critical question presented here is whether claimant complied with the requirements of section 11(a) of the Court of Claims Act and properly commenced an action in this Court when he filed the claim with the Court and, over a month later, served the letter-claim on the Attorney General.

Section 11(a) provides, in relevant part, as follows: "The claim shall be filed with the clerk of the court; and, except in the case of a claim for the appropriation by the state of lands, a copy shall be served on the attorney general . . ." (emphasis added). Research has disclosed no caselaw discussion of how close to identical that "copy" must be. As a practical matter some variation between the claim and the copy that is served on defendant is and should be tolerated, particularly when the documents are handwritten separately. Similarly, just because mailing time may vary, there will sometimes be a discrepancy between the date on which the claim was filed and the date on which a copy of the claim was served on the Attorney General.

In the instant case, however, the letter claim is so different from the claim that was filed with the Court that it cannot be considered a "copy." It is physically very different and, except for the last of five full pages, the content is entirely different. In addition, the letter claim was served a full month after the claim was filed, which could in some cases affect the timeliness of the claim and does, in fact, affect the timeliness of defendant's answer. The Court holds, therefore, that claimant failed to adequately comply with the requirement of section 11(a) of the Court of Claims Act in that he did not serve a copy of his claim on the Attorney General.

Claimant's motion was previously granted. Defendant's cross motion is granted and Claim No 105141 is dismissed.

December 31, 2003
Albany, New York

Judge of the Court of Claims

The following papers were read on claimant's motion for the production of a witness at trial, and on defendant's cross-motion for an order of dismissal
1. Notice of Motion and Supporting Affidavit of Donovan Gordon , pro se with annexed Exhibits

2. Notice of Cross-Motion and Supporting Affirmation of Eileen E. Bryant, Esq., AAG, with annexed Exhibits, including affidavit of Carol A. McKay.

3. Second affidavit of Carol A. McKay

4. Affidavit in opposition to Cross Motion of Donovan Gordon, pro se

5. Sur-Reply Affirmation of Kathleen M. Resnick, Esq., AAG, with annexed Exhibits

Filed papers: Claim; Answer

[1]The first affirmative defense is that the claim was not filed within 120 days after the date on which the inmate exhausted the personal property claims administrative remedy provided by the Department of Correctional Services (see, Court of Claims Act §10[9]).