New York State Court of Claims

New York State Court of Claims

MORALES v. THE STATE OF NEW YORK, #2004-019-502, Claim No. 108506, Motion No. M-67735


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:
Defendant's attorney:
HON. ELIOT SPITZER, ATTORNEY GENERALBY: James E. Shoemaker, Assistant Attorney General, of counsel
Third-party defendant's attorney:

Signature date:
January 7, 2004

Official citation:

Appellate results:

See also (multicaptioned case)


In lieu of an answer, the defendant State of New York (hereinafter "State") moves for dismissal on the grounds this court lacks jurisdiction pursuant to Court of Claims Act (hereinafter "CCA") 10 and 11. Claimant, an inmate appearing pro se, opposes the motion.[1]

Claimant alleges he was assaulted and cut in the face by an unknown inmate with a razor type weapon while in the field house at Elmira Correctional Facility on October 23, 2002. The claim alleges that this attack could have been prevented or the perpetrator identified were it not for the negligent supervision of the State. Claimant served a notice of intention upon the Attorney General's office, by certified mail, return receipt requested, on December 27, 2002. Thereafter, the State contends that it received this claim on October 23, 2003 by regular mail, rather than by personal service or certified mail, return receipt requested, as required by CCA 11 (a). The claim was filed with the Clerk of the Court on November 7, 2003.

By way of this motion, the State argues that the service of the claim by regular mail was improper pursuant to CCA 11 and, as such, failed to confer jurisdiction on this court. Additionally, the State argues that the notice of intention is deficient under CCA 11 (b).

With respect to the service of this claim, the State submits a copy of the envelope in which the claim was received which clearly denotes that it was sent by regular mail. 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.

Here, the court is presented with two affidavits of service submitted by claimant. The first affidavit of service was sworn to October 10, 2003 and was submitted simultaneously with the filing of this claim in the first instance. This first affidavit of service specifically references the service of this claim, but indicates that the claim was merely placed in the "United State [sic] mail box" at the correctional facility, but does not recite it was served by certified mail, return receipt requested. (Claimant's Affidavit of Service sworn to October 10, 2003). As such, the affidavit of service sworn to October 10, 2003 is insufficient to satisfy claimant's burden to come forward with the requisite proof of the proper manner of service. (CPLR 306).

Claimant also attaches to his opposing papers a copy of a second affidavit of service sworn to on December 2, 2003. However, this second affidavit of service references service of "the within Amswer [sic] and Response and the foregoing information and exhibit's as well as a copy of a letter". (Claimant's Affidavit of Service sworn to December 2, 2003). This second affidavit of service makes absolutely no reference to the service of the claim itself and, as such, is insufficient. (CPLR 306). Moreover, the court notes that claimant has not produced a signed green receipt card with respect to service of his claim, as is his burden. (Commack Self-Serv. Kosher Meats v State of New York, 270 AD2d 687). In sum, claimant has failed to establish that he served his claim by either personal service or certified mail, return receipt requested. Consequently, this claim must be dismissed since noncompliance with CCA 11 (a) is a fatal jurisdictional defect.

Additionally, although the State does not dispute that the notice of intention was timely and properly served, it argues that the description of the nature of the claim therein is inadequate pursuant to CCA 11 (b). CCA 11 (b) requires that a notice of intention "state the time when and place where such claim arose [and] the nature of the same." Here, claimant's notice of intention states, in pertinent part, as follows: "The time when, and the place where such claim arose and the nature of the same are as follows: On October 23, 2002, at the Elmira Correctional Facility, assaulted by unknown inmates(s)." (State's Exhibit B). The State contends that this notice of intention is inadequate in that it fails to set forth a basis for the State's liability and the location of the claim.

CCA 11 (b) does not require "absolute exactness" but rather allegations sufficient "[s]o as not to mislead, deceive or prejudice the rights of the State. In short, substantial compliance with section 11 is what is required [citations omitted]." (Heisler v State of New York, 78 AD2d 767, 767). Stated another way, the standard of CCA 11 (b) is met as long as the State had ample information to investigate the claim promptly and to ascertain its liability under the circumstances. (Riefler v State of New York, 228 AD2d 1000, 1001). Moreover, pro se litigants have been given a certain amount of latitude when evaluating their compliance with the statute. (Dunlop v State of New York, Ct Cl, August 19, 1998, NeMoyer, J., Claim No. 98564, Motion No. M-57884). Here, the court finds that this notice of intention, albeit basic, which was timely served by a pro se inmate under the care and custody of defendant, was sufficiently specific to allow the State to initiate an investigation had it so chosen. Further, the State has not represented that an attempted investigation was thwarted by insufficient information, particularly in light of the violent nature of the incident which undoubtedly led to the creation of internal facility incident reports easily located upon even a cursory investigation. (Cannon v State of New York, 163 Misc 2d 623, 627). In other words, the State has not represented that it was unable to investigate this incident or was misled or deceived in any manner. In sum, although this notice of intention did not specifically refer to a cause of action for negligent supervision, how the State was negligent could be reasonably inferred by the phrase "assault by unknown inmate(s)", namely negligent supervision. (Ferrugia v State of New York, 237 AD2d 858, 859). As such, this court finds that the notice of intention satisfies the requirements of CCA 11 (b).

Accordingly, although this current claim must be dismissed for the reasons set forth above, in view of the fact that claimant appears to have timely and properly served a notice of intention he need only prepare a new claim and file and serve the new claim in accordance with CCA 10, 11, and 11-a prior to the expiration of the statutory period to do so.

Accordingly, for the reasons stated above, it is ordered that the State's motion to dismiss, Motion No. M-67735, is GRANTED and Claim No. 108506 is DISMISSED.

January 7, 2004
Binghamton, New York

Judge of the Court of Claims

The Court has considered the following papers in connection with this motion:
  1. Claim, filed November 7, 2003.
  2. Notice of Motion No. M-67735, dated November 25, 2003, and filed November 28, 2003.
  3. Affirmation of James E. Shoemaker, AAG, in support of motion, dated November 25, 2003, with attached exhibits.
  4. "Response to Affirmation" of Heriberto Morales, in opposition to motion, sworn to December 2, 2003, and filed December 15, 2003.

[1]Claimant's papers, although designated as a "Notice of Motion", were deemed by this court as responsive papers to the motion.