New York State Court of Claims

New York State Court of Claims

JONES v. THE STATE OF NEW YORK, #2004-019-567, Claim No. 109387, Motion No. M-68697


Synopsis


In lieu of an answer, the State moves to dismiss because claim was served by regular mail; motion granted; claim dismissed.

Case Information

UID:
2004-019-567
Claimant(s):
SHAERVON JONES The court has sua sponte amended the caption to reflect the State of New York as the only proper defendant.
Claimant short name:
JONES
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):
109387
Motion number(s):
M-68697
Cross-motion number(s):

Judge:
FERRIS D. LEBOUS
Claimant's attorney:
SHAERVON JONES, 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:
August 20, 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 to dismiss this claim due to improper service pursuant to Court of Claims Act (hereinafter "CCA") 10 and 11. Claimant, an inmate appearing pro se, opposes the motion.


This is a bailment claim arising from the alleged loss of claimant's personal property during his transfer from Greene Correctional Facility to Southport Correctional Facility.[1] According to this record, claimant discovered various items of his personal property were missing on July 30, 2003. Claimant's inmate grievance was approved to the extent of offering him reimbursement for his missing property. Claimant rejected the offer of reimbursement and appealed the decision. Claimant's appeal was disapproved on March 5, 2004. This claim was filed with the Clerk of the Court on May 21, 2004 and served on the Office of the Attorney General by regular mail on May 24, 2004.[2]


By way of this motion in lieu of an answer, the State moves to dismiss on the sole ground that this claim was served by regular mail, rather than personal service or certified mail, return receipt requested, as required by CCA 11. (CCA 11 [c]). It is a fundamental principle of practice in the Court of Claims that the filing and service requirements are jurisdictional in nature and must be strictly construed. (Finnerty v New York State Thruway Auth., 75 NY2d 721, 722-723). As such, it was claimant's burden to come forward in opposition to this motion and establish proper service which he has failed to do. (Commack Self-Serv. Kosher Meats v State of New York, 270 AD2d 687). In opposition, claimant has submitted a letter response in which he argues that handwritten notations shown on the photocopy of his envelope are proof that prison officials are tampering with his mail. (State's Exhibit A).


It is well-settled that defects in mailing by an inmate can result in an estoppel, upon proper proof, if the State is the cause of the delay. (Wattley v State of New York, 146 Misc 2d 968). Here, however, claimant's mere allegations and speculation relative to the meaning of a handwritten notation on an envelope do not suffice as proper proof. Additionally, the court notes that claimant's own facility complaint asserting mail tampering was rejected by prison officials. (Exhibit B to claimant's letter dated June 28, 2004). In sum, absent proof warranting the application of estoppel, the court is without discretion to waive the statutory filing and service requirements and, as such, the claim must be dismissed in its entirety due to claimant's failure to comply with CCA 11 (a).


Accordingly, for the reasons stated above, it is ORDERED that the State's motion to dismiss, Motion No. M-68697, is GRANTED; and Claim No. 109387 is DISMISSED.

August 20, 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 May 21, 2004.
  2. Notice of Motion, Motion No. M-68697, dated June 28, 2004, and filed June 30, 2004.
  3. Affirmation of James E. Shoemaker, AAG, in support of motion, dated June 28, 2004, with attached exhibit.
  4. Letter from Shaervon Jones to Chief Clerk , dated June 28, 2004 and received July 2, 2004, in opposition to motion, with attached exhibits.

[1]Parenthetically, it appears that claimant served, but never filed with the Clerk of the Court, a separate and distinct claim relating to medical malpractice at Southport Correctional Facility accruing in September 2003. In fact, the Clerk of the Court sent letters to the Attorney General dated January 14, 2004 and January 20, 2004, with copies to claimant, advising that no such claim had been filed as of those dates.

[2]Claimant also served a notice of intention at the same time. However, a notice of intention relative to a bailment claim is of no legal consequence since the enactment of CCA 10 (9). (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]). Selected unreported decisions from the Court of Claims are available via the Internet at http://www.nyscourtofclaims.state.ny.us/decision.htm