New York State Court of Claims

New York State Court of Claims

McKENZIE v. THE STATE OF NEW YORK, #2004-032-027, Claim No. 108664, Motion No. M-67967


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:
Henry McKenzie, Pro Se
Defendant's attorney:
Hon. Eliot Spitzer, NYS Attorney General
By: Kathleen M. Resnick, Assistant Attorney General,Of Counsel
Third-party defendant's attorney:

Signature date:
April 26, 2004

Official citation:

Appellate results:

See also (multicaptioned case)


This claim for loss of personal property, commenced by a prison inmate, was served on defendant on December 15, 2003, and filed with the Court the following day. In the claim, it is asserted that the cause of action accrued on September 11, 2003; that the claim was served and filed within ninety days of the date of accrual; and that as a claim for loss of personal property, the claim was served and filed within 120 days of the exhaustion of claimant's administrative remedies.

In lieu of answering, counsel for defendant has moved for an order dismissing the claim on the grounds that (1) "[c]laimant has failed to submit proof that he exhausted all administrative remedies at the facility level before serving and filing the instant claim" and (2) that the claim was improperly served. With respect to the first alleged jurisdictional defect, the Court agrees with Judge Philip Patti who held, in Edwards v State of New York (UID # 2001-013-026, dated December 7, 2001, and UID #2002-013-012, dated March 21, 2002, Motion No. M-63697) that a claimant does not need to affirmatively plead exhaustion of administrative remedies in claims for property loss or damage to property brought pursuant to Court of Claims Act §10(9). This approach agrees with practice relating to the similar requirement of administrative exhaustion in Article 78 proceedings, where "[f]ailure to exhaust administrative remedies is not an element of an article 78 claim for relief, but an affirmative defense which must be raised by respondent either in an answer or by preanswer motion or else be deemed waived" (Matter of Warwick v Henderson, 117 AD2d 1001 [4th Dept 1986]; see also Greco v Trincellito, 206 AD2d 779, 780 [3d Dept 1994]).

The branch of defendant's motion resting on allegations that the claim was improperly served, however, requires dismissal of the action. In support of the motion, defense counsel has attached a photocopy of the envelope in which the claim was served (Resnick affidavit, Exhibit A), establishing that regular postage was used. Section 11(a) of the Court of Claims Act requires that claims and notices of intention must be served on the State either personally or by certified mail, return receipt requested. Failure to comply with the time or manner of service requirements contained in sections 10 and 11 of the Court of Claims Act is a fatal jurisdictional defect and, if properly raised by defendant in its answer or in a pre-answer motion, deprives this Court of the power to hear the claim (Dreger v New York State Thruway Auth., 81 NY2d 721, 724 [1992]; Bogel v State of New York, 175 AD2d 493 [3d Dept 1991]).

Defendant's motion is granted and Claim No. 108664 is dismissed.

April 26, 2004
Albany, New York

Judge of the Court of Claims

The following papers were read on defendant's motion for an order of dismissal:
1. Notice of Motion and Supporting Affirmation of Kathleen M. Resnick, Esq., AAG,, with annexed Exhibit

2. Letter in Opposition of Henry McKenzie, pro se

Filed papers: Claim