New York State Court of Claims

New York State Court of Claims

JOHNSON v. THE STATE OF NEW YORK, #2004-019-551, Claim No. 109077, Motion Nos. M-68425, CM-68517


Synopsis


Claimant's motion for permission to treat the notice of intention as a claim, is denied; and the State's cross-motion to dismiss the claim is granted; claim dismissed.

Case Information

UID:
2004-019-551
Claimant(s):
JOHNATHAN JOHNSON
Claimant short name:
JOHNSON
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
109077
Motion number(s):
M-68425
Cross-motion number(s):
CM-68517
Judge:
FERRIS D. LEBOUS
Claimant's attorney:
JOHNATHAN JOHNSON, PRO SE
Defendant's attorney:
HON. ELIOT SPITZER, ATTORNEY GENERALBY: Joseph F. Romani, Assistant Attorney General, of counsel
Third-party defendant's attorney:

Signature date:
June 25, 2004
City:
Binghamton
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant, an inmate appearing pro se, moves for permission to treat the notice of intention as a claim pursuant to Court of Claims Act (hereinafter "CCA") 10 (8) (a).[1] The State of New York (hereinafter "State") opposes the motion and cross-moves to dismiss the corresponding claim.

Claimant served a Notice of Intention by certified mail, return receipt requested, which was received by the Office of the Attorney General on February 25, 2004. Claimant filed a claim with the Clerk of the Court on March 24, 2004. Claimant never served this claim on the Office of the Attorney General for reasons which will be addressed below and now seeks permission to treat his notice of intention as the claim in this matter.


In his Notice of Intention, claimant alleges that a nurse at Southport Correctional Facility ("Southport") delayed providing his sinus medication, Nasacort - a nasal spray, in a wilful attempt to retaliate against him for filing a grievance against her. More specifically, claimant asserts his medication was ordered on February 10, 2004 and dated February 13, 2004, but not given to him until February 15, 2004. As a result of this delay, claimant alleges that his "[n]ose was stopped-up and I had headaches for days." (State's Exhibit D, Notice of Intention, p 2). The Notice of Intention alleges wilful conduct, negligence, and negligent training and supervision.

  1. Claimant's Motion No. M-68425
CCA 10 (8) (a) provides:
[a] claimant who timely serves a notice of intention but who fails to timely serve or file a claim may, nevertheless, apply to the court for permission to treat the notice of intention as a claim. The court shall not grant such application unless: it is made upon motion before an action asserting a like claim against a citizen of the state would be barred under the provisions of article two of the civil practice law and rules; the notice of intention was timely served, and contains facts sufficient to constitute a claim; and the granting of the application would not prejudice the defendant.

(Emphasis added).



Claimant's papers do not address the individual elements set forth in the statute, but merely assert that the superintendent at Southport has a policy that prohibits service of claims by certified mail, return receipt requested. (Claimant's Affidavit, ¶ 4). Claimant indicates he filed a grievance regarding said policy, but has not submitted any proof of said policy and/or grievance with his papers. In opposition, the State concedes that claimant's application meets the timeliness requirements set forth in CCA 10 (8), but contends the Notice of Intention does not contain facts sufficient to constitute a claim and that the granting of this application would prejudice the State.


In examining whether this Notice of Intention contains facts sufficient to constitute a claim, the court is mindful that the requirements of the Court of Claims Act are jurisdictional in nature and must be strictly construed. (Lurie v State of New York, 73 AD2d 1006, affd 52 NY2d 849). The court must examine whether claimant's Notice of Intention states causes of action for negligence and wilful conduct. (Waters of Saratoga Springs v State of New York, 68 NY2d 777; State's Exhibit D). With respect to claimant's references to negligence, the Notice of Intention does not describe how any of his allegations could be construed as negligence in light of his theory that the nurse's conduct was intentional and in retaliation for a prior grievance filed against her. As such, the court finds this Notice of Intention fails to state a cause of action in negligence. (Artale v State of New York, 140 AD2d 919).


With respect to the allegations of retaliatory conduct, it has previously been held that the proper venue for so-called retaliation claims are inmate grievance procedures and Article 78 proceedings, not the Court of Claims. (Zulu v State of New York, 2001 NY Slip Op 40047 [U]).

Consequently, the court finds that this Notice of Intention fails to state a cause of action based upon intentional tort.


In view of the foregoing, this court finds that the Notice of Intention fails to contain facts sufficient to constitute a claim and, as such, the court cannot deem it a claim. (Jackson v State of New York, 85 AD2d 818, 819, lv dismissed in part and denied in part 56 NY2d 501, 568; Patterson v State of New York, 54 AD2d 147, affd 45 NY2d 885).

  1. State's Cross-Motion No. CM-68517
The State cross-moves for dismissal on the grounds this court lacks jurisdiction because the claim was never served on the Office of the Attorney General pursuant to CCA 10 and 11. The State submits an affidavit from Carol A. McKay, a senior clerk in the Attorney General's office who avers that: "[b]ased on my review of the files in the Office of the Attorney General of the State of New York, Albany Claims Practice Group, I find no record that the Claim in this matter was ever served on the Attorney General." (State's Exhibit F, Affidavit of Carol A. McKay, ¶ 4).


It is a fundamental principle of practice in the Court of Claims that the filing and service requirements contained in CCA 10 and 11 are jurisdictional in nature and must be strictly construed. (Finnerty v New York State Thruway Auth., 75 NY2d 721, 722-723). Claimant has failed to come forward to establish proper service of this claim which is his burden. (Commack Self-Serv. Kosher Meats v State of New York, 270 AD2d 687). Rather, claimant has essentially raised an estoppel argument in his initial papers by asserting that Southport has a policy that prevents service of claims by certified mail, return receipt requested.


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). In this court's view, however, claimant has failed to set forth sufficient proof warranting the application of estoppel in this instance. Claimant has not submitted any supporting proof that the State refused to send his claim by certified mail, return receipt requested, or that the State failed to process a request for a legal advance if he had insufficient funds to cover the cost of mailing, let alone that he ever requested his claim be sent by such method or requested any legal advance in the first instance.[2] Without such proof, the court has no way of determining whether claimant ever properly requested that prison officials mail his claim by certified mail, return receipt requested, and/or 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. The court is without discretion to waive the requirements of CCA 10 and 11. Consequently, this claim must be dismissed due to claimant's failure to demonstrate his compliance with CCA 10 and 11.


In view of the foregoing, IT IS ORDERED that claimant's motion for permission to treat the notice of intention as a claim, Motion No. M-68425, is DENIED; and the State's Cross-Motion No. CM-68517 is GRANTED, and Claim No. 109077 is DISMISSED.

June 25, 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 March 24, 2004.
  2. Notice of Motion No. M-68425, dated April 19, 2004, and filed April 28, 2004.
  3. Affidavit of Johnathan Johnson, in support of motion, sworn to April 19, 2004.
  4. Notice of Cross Motion No. CM-68517, dated May 26, 2004, and filed May 28, 2004.
  5. Affirmation of Joseph F. Romani, AAG, in support of cross-motion, and in opposition to motion, dated May 26, 2004, with attached exhibits.
  6. Affidavit of Carol A. McKay, in support of cross-motion, sworn to May 21, 2004, with attached exhibits.


[1]Claimant has made two other identical motions in two other pending matters. For ease of reference, the court has simultaneously issued three separate Decisions & Orders addressing each separate motion, cross-motion and claim. (Johnson v State of New York, Ct Cl, June __, 2004, Lebous, J., Claim No. 109115; Motion Nos. M-68426 & CM-68517; Johnson v State of New York, Ct Cl, June __, 2004, Lebous, J., Claim No. 109187; Motion Nos. M-68513 & CM-68596).
[2]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]).