New York State Court of Claims

New York State Court of Claims

HICKS v. THE STATE OF NEW YORK, #2004-009-73, Claim No. 109769, Motion No. M-69170


Synopsis


Defendant's motion to dismiss this bailment claim was granted based upon improper service. Claimant's service of a notice of intention did not extend the time to serve and file a claim, since a notice of intention is not recognized under § 10(9).

Case Information

UID:
2004-009-73
Claimant(s):
TYRONE HICKS The Court, sua sponte, has amended the caption to reflect the State of New York as the only proper defendant before this Court.
Claimant short name:
HICKS
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :
The Court, sua sponte, has amended the caption to reflect the State of New York as the only proper defendant before this Court.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
109769
Motion number(s):
M-69170
Cross-motion number(s):

Judge:
NICHOLAS V. MIDEY JR.
Claimant's attorney:
TYRONE HICKS, Pro Se
Defendant's attorney:
HON. ELIOT SPITZER
Attorney General
BY: Joel L. Marmelstein, Esq.,
Assistant Attorney GeneralOf Counsel.
Third-party defendant's attorney:

Signature date:
November 4, 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 claimant's alleged failure to properly serve his claim.

The following papers were considered by the Court in connection with this motion:
Pre-Answer Motion to Dismiss Claim, Affirmation, with Exhibits 1,2

In this claim, claimant, an inmate under the care and custody of the Department of Correctional Services, seeks damages for the loss of certain items of personal property which allegedly occurred when he was transferred from Clinton Correctional Facility to Mid-State Correctional Facility on April 30, 2004.

As set forth in the attachments to his claim (see Exhibit C to Items 1,2), claimant initially pursued this claim through the administrative process at Mid-State Correctional Facility. His claim was disapproved on or about July 26, 2004, and his administrative appeal to the superintendent was then denied on August 10, 2004. As set forth in defendant's moving papers, claimant then served a notice of intention to file a claim (see Exhibit A to Items 1,2) on the Attorney General on August 18, 2004, by certified mail, return receipt requested. Shortly thereafter, defendant states that claimant served his claim on the Attorney General on August 25, 2004, and that the claim was served by regular, first class mail. The claim was filed with the Clerk of the Court of Claims on August 25, 2004.

Defendant now seeks dismissal of this claim, contending that the claim was improperly served upon the Attorney General, in that claimant failed to comply with the service requirements set forth in Court of Claims Act § 11(a).

Claimant has not submitted any papers in opposition to the relief sought in this motion.

This claim is governed by § 10(9) of the Court of Claims Act. This statute provides that any claim alleging the loss of personal property by an inmate is not permitted to be filed "unless and until the inmate has exhausted the personal property claims administrative remedy". Furthermore, the statute requires that any such claim "must be filed and served within one hundred twenty days after the date on which the inmate has exhausted such remedy."

Initially, the Court notes that § 10(9) contains no provision permitting the use of a notice of intention to extend the time within which an inmate may bring a claim alleging the loss of personal property. Since the use of a notice of intention to extend the time in which to serve and file a claim is not expressly contained in § 10(9), the notice of intention served by claimant is a nullity (Cepeda v State of New York, Ct Cl, October 22, 2001, Midey Jr., J., Claim No. 104717, Motion No. M-64015 [UID No. 2001-009-049]; Gloster v State of New York, Ct Cl, June 5, 2002, McNamara, J., Claim No. 103662, Motion No. M-64877 [UID No. 2002-011-550]).[1]

The Court must therefore determine whether the claim was properly served. As set forth in defendant's moving papers, the claim for lost property was served upon the Attorney General by regular, first class mail, on August 25, 2004. Defendant's attorney has attached a copy of the envelope in which the claim was mailed (see Exhibit D to Items 1,2) on which postage in the amount of $1.06 is affixed. There is no additional postage or any other markings on the envelope to indicate that the claim was served other than by regular, first class mail.

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, such a provision is a jurisdictional prerequisite 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). The use of ordinary mail to serve a claim upon the Attorney General is therefore 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.

Accordingly, it is

ORDERED, that Motion No. M-69170 is hereby GRANTED; and it is further

ORDERED, that Claim No. 109769 is hereby DISMISSED.



November 4, 2004
Syracuse, New York

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




[1] Unpublished decisions and selected orders of the Court of Claims are available via the Internet at