New York State Court of Claims

New York State Court of Claims

SMITH v. THE STATE OF NEW YORK, #2004-030-935, Claim No. 109383, Motion Nos. M-68690, CM-68913


No grounds found to apply equitable estoppel with respect to service of claim. Late filing granted.

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:
Beranbaum, Menken, Ben-Asher & Bierman, LLPby Rebecca Houlding, Esq.
Defendant's attorney:
Eliot Spitzer, Attorney Generalby Grace A. Brannigan, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
November 15, 2004
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


The court read and considered the following papers on defendant's motion to dismiss for lack of jurisdiction and claimant's cross-motion for permission to late file her claim: Notice of Motion, Affirmation and Exhibits; Notice of Cross-Motion, Affirmation, Affidavit, Exhibits and Memorandum of Law; Reply Affirmation and Exhibits; Affirmation in Further Support of Cross- Motion. Claimant, who was an inmate at Bayview Correctional Facility, alleges that she was sexually assaulted by a correction officer on May 28, 2003 and that she suffers from pain, anguish and emotional distress as a result of the assault. Claimant served a notice of intention to file a claim on September 2, 2003 (i.e., the document was received by the Attorney General on that date), 97 days after the claim accrued, and subsequently followed up by serving and filing the instant claim. Since the Court of Claims Act requires service of a notice of intention, or service and filing of a claim, within 90 days of accrual under these circumstances (Court of Claims Act §10[3]), defendant moves to dismiss for lack of jurisdiction resulting from the late service of the notice of intention.

Claimant, relying on Espinal v State of New York (159 Misc 2d 1051), argues that defendant should be estopped from raising the untimely service of the notice of intention as a defense to the claim because she allegedly delivered the notice of intention to a correctional facility employee in charge of mailing on August 21, 2003 (i.e., 85 days following accrual) but it was not postmarked until August 28, 2003 (92 days following accrual) and thus not timely served.

Defendant responds to this argument by providing a copy of claimant's disbursement request authorizing the expenditure of $4.05 for certified mail, return receipt requested, to the Attorney General. The request is dated August 25, 2003 (89 days following accrual). Thus, defendant argues, it was claimant who was responsible for the late service of the notice of intention by waiting until one day prior to the expiration of the statutory period before authorizing the document's mailing, essentially guaranteeing that it would not be delivered on time. Claimant's counsel correctly notes that what is presented is an issue of fact, that cannot be resolved on motion papers, as to precisely when claimant acted. Resolution of this issue, however, is not necessary in order to decide this motion.

In Espinal, supra, an inmate claimant who had delivered his notice of intention to correctional facility officials within 90 days of accrual argued that the "mailbox rule" that had been adopted by federal courts (see e.g. Dory v Ryan, 999 F.2d 679) – pursuant to which a pleading by an inmate claimant is deemed served on the date it is delivered to prison officials for mailing – should similarly apply to Court of Claims litigation. The court held that the mailbox rule has no application in the Court of Claims, noting that not only was there no basis in the Court of Claims Act for applying such a rule, but also that the "Legislature has already enacted procedures that give an incarcerated pro se litigant a measure of control over and knowledge about the processing of his claim" (Espinal, supra, 1054). Such procedures, as identified by the court, include the policy of advancing funds for certified mail service, the fact that a defense that a pleading was untimely served must be set forth at the beginning of the litigation or is waived (Court of Claims Act §11[c]), and the potential application of equitable estoppel if defendant's employees disregard a claimant's instructions (e.g., use regular mail instead of certified mail). The court also noted that the availability of relief pursuant to Court of Claims Act §10(6) provided a further safeguard in such cases.

The circumstances under which a governmental entity may be estopped from raising a jurisdictional defense are limited and rare (Bender v New York City Health and Hospitals Corp., 38 NY2d 662; Stroud v State of New York, 184 Misc 2d 876; Francis v State of New York, 155 Misc 2d 1006; Wattley v State of New York, 146 Misc 2d 968). In those few instances where such has occurred, it has been viewed as a "last resort" remedy necessary to prevent a manifest injustice resulting from a person's justified reliance on a misrepresentation by or wrongful conduct of a government employee. Here, the availability of late filing relief pursuant to §10(6) obviates the necessity of resorting to application of an estoppel, even if the relevant facts would support such a finding, which they do not.[1]

Accordingly, the court will grant the motion to dismiss claim no. 109383 and will consider the cross-motion for permission to file a late claim, which requires evaluation of the reason for claimant's delay in proceeding timely, whether defendant had timely notice of and the opportunity to investigate claimant's allegations, whether defendant would suffer substantial prejudice from an order allowing late filing, whether the proposed claim appears meritorious and whether claimant has an alternate remedy (Court of Claims Act §10[6]; Bay Terrace Coop. Section IV v New York State Employees' Retirement System Policemen's & Firemen's Retirement System, 55 NY2d 979).

Claimant has not presented a legally-cognizable excuse for not interposing her claim within 90 days of accrual. As noted, the court does not consider the assumption that service by mail would be complete in five days to be reasonable. Nevertheless, such is but one factor to consider, and the balance of the relevant statutory factors weigh in favor of the claimant.

On the related issues of timely notice, opportunity to investigate and prejudice, claimant notes that she submitted an institutional grievance within a month of the alleged incident and that defendant was aware of her allegations, in detail, well within the statutory period. Defendant argues that the Attorney General's office has been prejudiced by the refusal of the Department of Correctional Services' Inspector General to share the results of its ongoing investigation of the incident, but any prejudice arising from the Inspector General's relationship with the Attorney General has nothing to do with claimant's delay in serving the notice of intention. Defendant is in the exact same position with respect to notice of claimant's allegations and the opportunity to timely investigate as it would have been if claimant had served her notice of intention when she filed her institutional grievance, one month after the alleged incident[2], and the court finds that defendant would suffer no prejudice if this motion is granted.

A putative claimant's burden on a late filing motion is to demonstrate that the proposed claim is not patently groundless, frivolous or legally defective and that there are reasonable grounds to believe that a meritorious cause of action exists (Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1). Deeming claimant's factual allegations to be true for the purpose of this motion, and keeping in mind the total lack of prejudice resulting from the delay in service of the notice of intention, the court finds that claimant has met her burden in this regard.

The court finds that the possible availability of an alternate remedy, which was not addressed by either party, is of no particular relevance to this application.

Accordingly, Claim No. 109383 is dismissed, claimant's cross-motion for permission to late file is granted, and claimant may serve and file her claim, in accordance with the relevant provisions of the Court of Claims Act and the Uniform Rules for the Court of Claims, particularly with reference to manner of service and payment of the filing fee, within 40 days of the filing date of this decision and order.

November 15, 2004
White Plains, New York

Judge of the Court of Claims

[1]In the court's view, delivery of a document to a correctional facility mailroom for service by certified mail five days prior to the expiration of the deadline for service of that document is inherently unreasonable, and the late service thus cannot be attributed to the defendant.
[2]On September 10, 2003, the Inmate Grievance Program Central Review Office Committee wrote, apparently in response to the Superintendent's denial of claimant's grievance: "GRIEVANT'S REQUEST UNANIMOUSLY DENIED WITH CLARIFICATION. Upon full hearing of the facts and circumstances of the instant case, the action requested herein is hereby denied with clarification. CORC upholds the determination of the Superintendent for the reasons stated. CORC notes that the grievant's allegation of sexual misconduct by Officer H... has been forwarded to the appropriate Central Office personnel for investigation. Any action deemed necessary and appropriate will be taken as a result of that investigation." The Superintendent's determination was not part of the submitted papers so the court does not know why it was denied, but perhaps it was because the sole action requested was an award of monetary damages.