New York State Court of Claims

New York State Court of Claims

CASTELLANOS v. HANS WALKER, Superintendent of Auburn Correctional Facility, #2004-009-28, Claim No. 108457, Motion No. M-67844


Synopsis


Case Information

UID:
2004-009-28
Claimant(s):
ANGELO CASTELLANOS
Claimant short name:
CASTELLANOS
Footnote (claimant name) :

Defendant(s):
HANS WALKER, Superintendent of Auburn Correctional Facility
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
108457
Motion number(s):
M-67844
Cross-motion number(s):

Judge:
NICHOLAS V. MIDEY JR.
Claimant's attorney:
ANGELO CASTELLANOS, Pro Se
Defendant's attorney:
HON. ELIOT SPITZER
Attorney General
BY: Mary R. Humphrey
Senior AttorneyOf Counsel.
Third-party defendant's attorney:

Signature date:
April 20, 2004
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Defendant has brought this motion seeking an order of dismissal based upon improper service as well as a failure of the claimant to exhaust his administrative remedies.

The following papers were considered by the Court in connection with this motion:
Notice of Motion, Affirmation, with Exhibits (including the Affirmation of Candie Healey as Exhibit C) 1,2


Correspondence dated January 16, 2004 from Claimant, with Attachment 3

Initially, defendant argues that this claim should be dismissed since the claim was served upon the Attorney General by regular, first class mail, and not by certified mail, return receipt requested, as required by statute.

Court of Claims Act § 11(a) requires that a claim must be served upon the Attorney General either personally or by certified mail, return receipt requested (Hodge v State of New York, 213 AD2d 766). Furthermore, the provisions of § 11 are jurisdictional prerequisites to the institution and maintenance of a claim, and as such must be strictly construed (Greenspan Bros. v State of New York, 122 AD2d 249). Service of a claim which is not made in accordance with the provisions of § 11 is insufficient to confer jurisdiction over the State (Hodge v State of New York, supra).

In this claim, defendant asserts that the claim was served upon the Attorney General by regular, first class mail on October 16, 2003. A copy of the envelope in which the claim was mailed has been submitted (see Exhibit B to Items 1,2) on which postage in the amount of $.83 is affixed. This postage is inadequate to cover the cost of certified mail, return receipt requested, and there are no markings on the envelope to indicate that the claim was served by certified mail, return receipt requested, as required by statute.

In his response to this motion, claimant contends that his claim was served by certified mail, return receipt requested, and has submitted with his response photocopies of his certified mail receipt and the green receipt card, as well as his disbursement request submitted to the Department of Correctional Services for such postage. A review of these copies, however, establishes that the mailing procedures of certified mail, return receipt requested, were utilized by claimant to file his claim with the Clerk of the Court, since the document mailed by certified mail, return receipt requested, was addressed to the Court of Claims. Claimant has not submitted any similar proof to establish that his claim was served on the Attorney General by certified mail, return receipt requested, as required by statute.

Accordingly, based upon the evidence submitted by defendant in this motion, the Court finds that the claim was served upon the Attorney General by regular, first class mail.

The use of ordinary mail to serve a claim upon the Attorney General is insufficient to acquire jurisdiction (Bogel v State of New York, 175 AD2d 493). This Court does not have the authority to cure or overlook defects in the manner of service and filing and therefore this claim must be dismissed.

Defendant has also sought dismissal of this claim based upon claimant's failure to comply with the provisions of Court of Claims Act § 10(9).

In his claim, claimant seeks monetary damages for the loss of certain items of personal property which occurred when he was transferred from Marcy Correctional Facility to Auburn Correctional Facility on or about April 19, 2003. Claimant apparently became aware of this loss when he was subsequently transferred to Elmira Correctional Facility on September 4, 2003.

Section 10(9) provides that the " "claim of any inmate in the custody of the department of correctional services for recovery of damages for injury to or loss of personal property may not be filed unless and until the inmate has exhausted the personal property claims administrative remedy, established for inmates by the department." After the inmate has exhausted such administrative remedy, the claim must then be served and filed within 120 days.

The administrative remedy established by the Department of Correctional Services requires an inmate to follow a two-tier process for pursuing personal property claims. An inmate must file an administrative claim for initial review, and if there is an unsatisfactory result at that level, a claimant must then pursue an administrative appeal prior to the filing of any claim (see, 7 NYCRR § 1700.3).

In this claim, defendant has submitted the affirmation of Candie Healey, a clerk at Elmira Correctional Facility. In her affirmation, Ms. Healey states that there is pending an open, inactive administrative claim submitted by claimant on or about September 11, 2003. She indicates that the claim is still open, but is considered inactive because claimant has failed to respond to a request for additional information regarding his loss.

Accordingly, the Court finds that since the claim is still pending, claimant has not exhausted his administrative remedies prior to instituting this claim, and therefore has not complied with the requirements of Court of Claims Act § 10(9).

Therefore, for both of the reasons stated herein, it is

ORDERED, that Motion No. M-67844 is hereby GRANTED; and it is further

ORDERED, that Claim No. 108457 is hereby DISMISSED.


April 20, 2004
Syracuse, New York

HON. NICHOLAS V. MIDEY JR.
Judge of the Court of Claims