New York State Court of Claims

New York State Court of Claims

REED v. THE STATE OF NEW YORK, #2004-019-501, Claim No. 108453, Motion No. M-67717


Synopsis


Case Information

UID:
2004-019-501
Claimant(s):
TERRY REED
Claimant short name:
REED
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
108453
Motion number(s):
M-67717
Cross-motion number(s):

Judge:
FERRIS D. LEBOUS
Claimant's attorney:
TERRY REED, PRO SE
Defendant's attorney:
HON. ELIOT SPITZER, ATTORNEY GENERALBY: James E. Shoemaker, Assistant Attorney General, of counsel
Third-party defendant's attorney:

Signature date:
January 2, 2004
City:
Binghamton
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

In lieu of an answer, the State of New York (hereinafter "State") moves for dismissal pursuant to CPLR 3211 on the grounds this court lacks jurisdiction. Claimant opposes the motion.

This claim alleges that claimant broke his finger between steel plates and bolts located in his cell at Elmira Correctional Facility on August 5, 2003. Claimant alleges the State was negligent in permitting steel plates and bolts in his cell.


The State indicates it received this claim on October 17, 2003, by regular mail, rather than by personal service or certified mail, return receipt requested, as required by Court of Claims Act (hereinafter "CCA") 11 (a). The State submits a copy of the envelope in which said claim was received which clearly denotes that it was sent by regular mail. Claimant's response to this motion consists of a letter in which he concedes that he did not serve his claim by personal service or certified mail, return receipt requested, but appears to argue that he was denied an advance for legal mail. Claimant also refers the court to its own records where "you will find 'Advance form' and certified mail & return receipt". (Claimant's undated letter). It is unclear exactly what document claimant is referring to, but the only documents in the court's file other than the claim are the Order reducing the filing fee and claimant's application in support thereof.


In any event, it appears that claimant is arguing that the State should be estopped from invoking the provisions of CCA 10 and 11, because it somehow refused to process his request for an advance for legal mail. It is well-settled that defects in mailing by an inmate can result, upon proper proof, in an estoppel if the State is the cause of the delay. (Wattley v State of New York, 146 Misc 2d 968). Here, however, claimant has failed to submit sufficient proof warranting the application of estoppel in this instance. In the event claimant had insufficient funds to cover the cost of outgoing legal mail he was entitled to seek an advance. (7 NYCRR § 721.3 [a] [3]). Claimant has not submitted any supporting proof that the State failed to process his request for a legal advance, let alone that he ever requested the legal advance in the first instance. Without such proof, the court has no way of determining whether claimant ever properly requested that prison officials advance him postage for legal mail. Claimant's mere allegation of the State's failure to act is insufficient to overcome the presumption of regularity. (Wattley, 146 Misc 2d at 970). In sum, claimant has offered no proof establishing the State should be estopped from invoking the provisions of CCA 10 and 11.


It is a fundamental principle of practice in the court of claims that the filing and service requirements contained in the CCA are jurisdictional in nature and must be strictly construed. (Finnerty v New York State Thruway Auth., 75 NY2d 721, 722-723). The court is without discretion to waive these requirements. Consequently, this claim must be dismissed due to claimant's failure to comply with CCA 10 and 11.


Accordingly, for the reasons stated above, it is ORDERED that the State's motion for dismissal, Motion No. M-67717, is GRANTED and Claim No. 108453 is DISMISSED.

January 2, 2004
Binghamton, New York

HON. FERRIS D. LEBOUS
Judge of the Court of Claims



The Court has considered the following papers in connection with this motion:
  1. Claim, filed October 27, 2003.
  2. ORDER, Sise, J., Claim No. 108453, dated and filed November 10, 2003.
  3. Notice of Motion No. M-67717, dated November 25, 2003, and filed November 28, 2003.
  4. Affidavit of James E. Shoemaker, AAG, in support of motion, sworn to November 25, 2003, with attached exhibit.
  5. Letter from Terry Reed to the Chief Clerk, in opposition to motion, undated, and received by the Clerk's Office on December 1, 2003.