New York State Court of Claims

New York State Court of Claims

CAMPBELL v. THE STATE OF NEW YORK, #2004-030-001, Claim No. 107066


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:
Third-party defendant's attorney:

Signature date:
January 7, 2004
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)

Larry G. Campbell, the Claimant herein, alleges in Claim Number 107066 that Defendant's agents negligently or intentionally lost his personal property while he was in the custody of the New York State Department of Correctional Services (hereafter DOCS) at Sing Sing Correctional Facility (hereafter Sing Sing). Trial of the matter was held on November 18, 2003.

As an initial matter, the Defendant moved to dismiss the claim based upon its Fifth Affirmative Defense, a failure to timely serve the claim upon the Attorney General, resulting in a lack of jurisdiction.
See Court of Claims Act §§10 and 11. Pursuant to the Decision and Order of the Honorable Thomas J. McNamara, Claimant was to serve and file his late bailment claim "in the manner required by Court of Claims Act §11 within thirty days of service upon him of a file-stamped copy of this order." [Campbell v State of New York, Claim No. NONE, UID #2002-011-526, Motion No. M-64421, McNamara, J., September 3, 2002]. A file-stamped copy of the Decision and Order was served upon Claimant by the Attorney General on September 23, 2002 [Exhibit C]. According to the logbook records maintained by Five Points Correctional Facility, a document mailed from the Attorney General's Office was received by Claimant on October 4, 2002, but there is no indication in the logbook of what document he received. [Exhibit B]. Claimant himself did not recall when he received either a file-stamped copy from the Chief Clerk of the Court of Claims or the copy served by the Attorney General.[1]
In any event, service of the present Claim upon the Attorney General was completed on November 14, 2002, when it was received by that office. [Exhibit A];
See Court of Claims Act §11(a)(i). The Claim was filed in the Court of Claims on December 10, 2002 according to the letter to the parties acknowledging filing of the Claim in the Court.
The filing and service requirements contained in Court of Claims Act §§10 and 11
are jurisdictional in nature and must be strictly construed. Finnerty v New York State Thruway Auth., 75 NY2d 721, 722-723 (1989); See also Welch v State of New York, 286 AD2d 496, 729 NYS2d 527, 529 (2d Dept 2001); Conner v State of New York, 268 AD2d 706, 707 (3d Dept 2000). Indeed, the statute provides in pertinent part ". . . [n]o judgment shall be granted in favor of any claimant unless such claimant shall have complied with the provisions of this section applicable to his claim." Court of Claims Act §10.
Court of Claims Act §11(a)(i) provides that ". . . a copy [of the claim] shall be served personally or by certified mail, return receipt requested, upon the attorney general . . ." within the time prescribed in Court of Claims Act §10, and service is complete when it is received in the Attorney General's Office. Court of Claims Act §11(a)(i). The Claimant has the burden of establishing proper service [
Boudreau v Ivanov, 154 AD2d 638, 639 (2d Dept 1989)] by a preponderance of the evidence. See Maldonado v County of Suffolk, 229 AD2d 376 (2d Dept 1996). Regulations require that proof of service be filed with the Chief Clerk within ten (10) days of service on the defendant. 22 NYCRR § 206.5(a).
A bailment claim must be served and filed within one hundred twenty (120) days of exhaustion of the administrative remedy. Court of Claims Act §10(9);
See 7 NYCRR §1700.1 et seq. The administrative process was concluded in December 2000 or January, 2001, depending on which documents are read, clearly well before the present claim was filed. More significantly, when a Claimant has been granted permission to serve and file a late claim [Court of Claims Act §10(6)], it is the directions contained in the Decision and Order granting such permission that control the issue of timeliness. For example, when a Claimant had been granted permission to file a late claim with respect to one specific cause of action, inclusion of additional, and also untimely, causes of action was precluded by the limitations of the Decision and Order granting him permission to serve and file a late claim. [See, Forshey v State of New York, UID #2003-013-032, Claim No. 107718, Motion Nos. M-66913, M-66926, M-67395, CM-67077, Patti, J. November 25, 2003]. Dismissal was warranted there because of the failure to comply with a prior court order. [Ibid].
During the trial there was some colloquy regarding when - and if - the Claimant had been sent a file-stamped copy of Judge McNamara's decision by the Clerk's office at some earlier date, and whether the obligations to serve the claim within thirty (30) days of receipt of the decision were triggered at that time. Clearly, the language from Judge McNamara's decision puts an affirmative obligation upon the Attorney General to serve a file-stamped copy of the decision on the Claimant should that office want to trigger an obligation to serve and file the claim within a specific time frame. The Court is satisfied that Claimant was served with a file-stamped copy of the decision on September 23, 2002. The Claimant did not meet the deadline of October 23, 2002 to serve his Claim.

The Claimant has failed to establish, by a fair preponderance of the credible evidence, that the Attorney General was timely served with a copy of the claim as required by Court of Claims Act §11(a) and the specific parameters of the Decision and Order granting him permission to file a late claim. The Defendant has raised the affirmative defense with sufficient particularity, as required by Court of Claims Act §11(c), and has raised the jurisdictional issue in a timely motion. Accordingly, Defendant's motion to dismiss based upon untimely service, reserved on at the time of trial, is hereby granted, and Claim Number 107066 is hereby dismissed in its entirety for a lack of jurisdiction and a failure to comply with the prior order of the Court.

Let Judgment be entered accordingly.

January 7, 2004
White Plains, New York

Judge of the Court of Claims

[1]It is also noted that Claimant presented a letter he sent to the Chief Clerk purportedly enclosing a copy of the within claim, dated October 18, 2002, and file-stamped by the Clerk's office on November 14, 2002. [Exhibit 7]. For unknown reasons, it appears that the papers were returned to Claimant. The file-stamped date, however, is the same date the Attorney General's Office indicates they were served with the Claim, further confirming the timing as beyond the directives contained in Judge McNamara's Decision and Order. It also confirms Claimant's receipt of Judge McNamara's Decision and Order.