New York State Court of Claims

New York State Court of Claims

CINTRON v. THE STATE OF NEW YORK, #2004-030-571, Claim No. 108951, Motion No. M-68395


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:
September 16, 2004
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers numbered 1 to 8 were read and considered on Defendant's motion

to dismiss the within claim:

1,2 Notice of Motion, Affirmation in Support by Jeane L. Strickland Smith, Assistant Attorney General dated April 27, 2004, and attached exhibits

3,4 Opposition to Motion to Dismiss by William J. Rold, Attorney for Claimant, dated July 6, 2004 and attached exhibits; Memorandum of Law

  1. Supplemental Opposition to Motion to Dismiss dated July 8, 2004
  1. Reply Affirmation by Jeane L. Strickland Smith, Assistant Attorney General dated July 30, 2004, and attached exhibit
  1. Sur-reply in Opposition to Dismissal by William J. Rold, Attorney for Claimant, dated August 2, 2004
  1. Filed Papers: Claim
After carefully considering the papers submitted and the applicable law the motion is disposed of as follows:

Leticia Cintron, the Claimant herein, alleges in Claim Number 108951 that Defendant's agents failed to provide her with adequate and timely medical care while she was an inmate in the custody of the New York State Department of Correctional Services (hereafter DOCS) at Albion Correctional Facility (hereafter Albion) and Beacon Correctional Facility (hereafter Beacon). In the Claim she alleges that the negligent acts constitute a continuous course of conduct from December 1999 through October 2003. She alleges that a Notice of Intention to file a claim based upon this course of conduct was served on the Attorney General on or about February 7, 2002. The Claim itself was served on the Attorney General on February 26, 2004, as reflected on the file-stamped copy of the claim provided by the Defendant. [See Affirmation in Support by Jeane L. Strickland Smith, Exhibit 1].

Carol A. McKay, a Senior Clerk in the Albany Office of the Attorney General, whose job includes familiarity with the record-keeping system of the office, writes that after a search of the records of the Attorney General's Office she found that the only correspondence received in connection with this Claim is the claim itself, on February 26, 2004 by certified mail, return receipt requested; and a letter from the Court of Claims dated March 5, 2004 acknowledging receipt of the claim by the Court. [Affirmation in Support, Exhibit 2]. No record of service of a Notice of Intention to file a claim by Claimant was found. [Id].

After the Claim - which contains a paragraph indicating that a Notice of Intention had been served on Defendant - was served on the Attorney General on February 26, 2004, an Assistant Attorney General wrote to Claimant's counsel asking for a copy of any Notice of Intention along with proof of service of same. [Affirmation in Support, Exhibit 3]. In response, Counsel forwarded a copy of a Notice of Intention filed in, and then returned by, the Court of Claims in or about February 2002, that he indicated was also served by Claimant on the Attorney General at the same time. [Ibid, Exhibit 4].

The Notice of Intention indicates that the claim arose on December 15, 1999, and then describes subsequent visits to medical personnel for testing and diagnosis through December 31, 2001, when Claimant wrote she received medication on the latter date and was scheduled for "another colonoscopy." Although there is a verification form attached to the Notice, there is no Affidavit of Service, nor has any other proof of service been offered in the form of, for example, a return receipt card, or a disbursement request form, to further support Claimant's assertion that a Notice of Intention was served on the Attorney General on or about February 7, 2002.

In papers filed in opposition to the present motion, Counsel for Claimant attaches a copy of a page from the handwritten mail log maintained by Beacon, obtained informally through consent discovery from the Assistant Attorney General. [Opposition to Motion to Dismiss, Exhibit C]. Counsel for Claimant relies on the placement of Claimant's name in juxtaposition to the word "certified" on the mail log, as showing that mail to the Attorney General was sent certified mail, return receipt requested on February 8, 2002. [Id].

After reviewing the page itself, however, and the affidavit of Carole Blake who wrote the log, it is clear that the log page from February 8, 2002 does not establish what counsel argues. It contains what is clearly a heading - "outgoing legal" - centered on the page, and then a list of three items of mail including two from Claimant directed to the Court of Claims and to the Attorney General's office, respectively. [Id]. This list of three items is then followed by the heading "certified" - also centered on the page - and an unrelated item of mail listed as going to "Taconic CF." [Id].

Carole Blake, the individual who actually maintained the log in the Beacon mail room, writes in her sworn affidavit that she is solely responsible for preparation of all outgoing mail, and for processing all incoming mail. [Reply Affirmation, Exhibit 1, ¶¶ 1 and 2]. She states that "When inmate outgoing mail is received in the mail room postage stamps are already placed on the envelopes. On those occasions when there is no postage, written instruction from the inmate usually accompanies the mail. The inmate would instruct me to submit a disbursement form for the cost of a special mail service, such as certified mail return receipt. The disbursement form would be submitted to Inmate Accounts. After payment is received, the mail is then forwarded to the U.S. Postal Service in accordance with the inmate's instructions. If the inmate's request was for certified mail, an entry would be made in the mail room log on the date the mail left the facility." [Ibid, ¶3]. Ms. Blake indicates she had no special instructions from Claimant for the mail, no disbursement requests, and the mail received for processing from Claimant contained first class postage stamps. She confirms that the headings "legal mail" and "certified" precede the items listed below, and that while "legal mail" was sent by Claimant on that date, and duly noted by the affiant on the log, no certified mail was sent except from the Inmate Records Coordinator (hereafter IRC) at Beacon to the IRC at Taconic Correctional Facility. [Ibid, ¶¶ 4 - 8].

In rebuttal to Ms. Blake's affidavit, Counsel for Claimant indicates he has never received mail from a correctional facility containing stamps - that it is usually metered - that the mail clerk did not provide a record of what disbursement requests were made, that the mail room log is "ambiguous", and that there should be a hearing to resolve this issue. [See, Sur-Reply in Opposition to Dismissal].

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) requires that any Notice of Intention, as well as 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. Service is complete when it is received in the Attorney General's Office. Court of Claims Act §11(a)(i). Service upon the Attorney General by ordinary mail is generally insufficient to acquire jurisdiction over the State, unless the State has failed to properly plead jurisdictional defenses or raise them by motion. Court of Claims Act §11(c); Edens v State of New York, 259 AD2d 729 (2d Dept 1999); Philippe v State of New York, 248 AD2d 827 (3d Dept 1998).

It is the Claimant who 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). Even if an affidavit of service has not been filed with the Chief Clerk's Office, some form of proof of service would be necessary in order to make application for a default judgment [Civil Practice Law and Rules§ 3215(f)] for example; or to oppose a party's motion to dismiss based upon lack of service. Civil Practice Law and Rules §3211(e). Indeed, in the standard civil case, where independent process servers attest to the facts of service, an affidavit of service constitutes prima facie evidence of proper service in the absence of a sworn denial that the party to be served was not served. Maldonado v County of Suffolk, supra, at 377; cf. Persaud v Teaneck Nursing Center, Inc., 290 AD2d 350 (1st Dept 2002).

There is no affidavit of service with respect to the Notice of Intention. No documentary proof - such as disbursement requests or return receipts - has been provided. Only an attorney's affirmation has been furnished with respect to any factual assertion, beyond the initial sworn statement in the Claim that a Notice of Intention was served on the Attorney General. Notably, the statement does not indicate that the Notice of Intention was served by certified mail, return receipt requested as required.

Here, the Claimant has not been able to establish that she served the Notice of Intention upon the Attorney General as required. No issue of fact has been presented sufficient to warrant any hearing on the issue. Claimant has not supplied any proof sufficient to establish as an initial matter that there was service, and only the sworn statements of the mail room clerk at Beacon, and the clerk in the Office of the Attorney General, have been provided on the motion. Contrary to Counsel for Claimant's conclusory assertion, there is no ambiguity in the Beacon mail room log, given Ms. Blake's unchallenged explanation of her record keeping.

Because no Notice of Intention was ever served, there has been no toll of the statute of limitations with respect to service of the Claim itself and Defendant has raised the jurisdictional issue in a timely motion. Even assuming a date of accrual of October 31, 2003 - the last date concerning medical treatment indicated - the claim would only be timely served within ninety (90) days of that date. Service of the claim itself, as acknowledged by the Defendant, was completed on February 26, 2004, well after expiration of the limitations period.

Claimant has failed to establish that the Attorney General was served with a Notice of Intention, and has failed to establish that the Attorney General was timely served with a copy of the claim as required by Court of Claims Act §11(a) . Accordingly, Claim Number 108951 is hereby dismissed for a lack of jurisdiction.[1]

Let judgment be entered accordingly.

September 16, 2004
White Plains, New York

Judge of the Court of Claims

[1]Although Counsel for Claimant refers to some of the pertinent law concerning service and filing of a late claim, no cross-motion for permission to serve and file a late claim is properly before the Court, thus the issue has not been considered. See Court of Claims Act § 10(6).