New York State Court of Claims

New York State Court of Claims

DINKINS v. THE STATE OF NEW YORK, #2004-019-513, Claim No. 108602, Motion Nos. M-67846, M-67866


Synopsis


Case Information

UID:
2004-019-513
Claimant(s):
DONNIE T. DINKINS The Court has sua sponte amended the caption to reflect the State of New York as the only proper defendant.
Claimant short name:
DINKINS
Footnote (claimant name) :

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

Third-party defendant(s):

Claim number(s):
108602
Motion number(s):
M-67846, M-67866
Cross-motion number(s):

Judge:
FERRIS D. LEBOUS
Claimant's attorney:
DONNIE T. DINKINS, 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 30, 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 an order dismissing this claim based upon claimant's failure to comply with Court of Claims Act (hereinafter "CCA") 10 and 11. (Motion No. M-67866). Claimant, an inmate appearing pro se, moves for assignment of counsel pursuant to CPLR 1101. (Motion No. M-67846). The court has not received any papers by or on behalf of claimant in opposition to the State's motion for dismissal.

The court's file contains two versions of the same claim. The claim, in both versions, sounds in bailment and alleges that from June 16, 2003 through August 29, 2003, officers at an unnamed correctional facility stole his personal property. Both versions of the claim were filed with the Clerk of the Court on December 2, 2003.


By way of this motion, the State seeks dismissal herein on the grounds that this claim was served by regular mail which is not a prescribed manner pursuant to CCA 11. It is well-settled that service by regular mail is insufficient to acquire jurisdiction over the State. (Philippe v State of New York, 248 AD2d 827). The State submits a copy of the envelope in which said claim was received which clearly denotes that it was sent by regular mail. Although claimant has not responded to this motion, the court has reviewed the affidavit of service attached to each version of this claim. Neither affidavit of service indicates the method of service employed and, as such, are insufficient. (CPLR 306). Nor has claimant come forward with the requisite proof of service, such as a signed green receipt card, as is his burden. (Commack Self-Serv. Kosher Meats v State of New York, 270 AD2d 687).


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.


The court notes an additional basis for dismissal, namely claimant's failure to establish his compliance with the time constraints of CCA 10 (9) which states that:
[a] 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. Such claim must be filed and served within one hundred twenty days after the date on which the inmate has exhausted such remedy.

Although the claim itself alleges that claimant exhausted his administrative remedies, there is nothing in this record from which this court could conclude that claimant pursued, let alone exhausted, the administrative remedies available to him pursuant to 7 NYCRR Part 1700. Consequently, the court finds claimant has not demonstrated that he exhausted the available administrative remedies pursuant to CCA 10 (9) and, as such, may not pursue his claim in this venue.


Accordingly, for the reasons stated above, it is ORDERED that the State's motion to dismiss, Motion No. M-67866, is GRANTED and Claim No. 108602 is DISMISSED. Claimant's motion for the assignment of counsel, Motion No. M-67846, is DENIED as moot.


January 30, 2004
Binghamton, New York

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



The Court has considered the following papers in connection with these motions:
  1. Claim, filed December 2, 2003.
  2. Claim, filed December 2, 2003.
  3. "Petition", Motion No. M-67846, dated November 3, 2003, and filed December 2, 2003.
  4. Affidavit of Donnie T. Dinkins, in support of "Petition", sworn to October 29, 2003.
  5. Affirmation of James E. Shoemaker, AAG, in opposition, dated January 20, 2004, and filed January 22, 2004.
  6. Notice of Motion No. M-67866, dated January 7, 2004, and filed January 9, 2004.
  7. Affidavit of James E. Shoemaker, AAG, in support of motion, sworn to January 7, 2004, with attached exhibit.
  8. Letter from James E. Shoemaker, AAG to Court, dated January 9, 2004 and received January 12, 2004.