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 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]).
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.