New York State Court of Claims

New York State Court of Claims

FLEMMING v. THE STATE OF NEW YORK, #2005-009-030, Claim No. 110540, Motion Nos. M-69951, CM-69969


Synopsis


Defendant's motion to dismiss the claim for improper service was granted, with the Court finding that claimant failed to establish that his claim was served by certified mail, return receipt requested.

Case Information

UID:
2005-009-030
Claimant(s):
WOODROW FLEMMING The Court, sua sponte, has amended the caption to reflect the State of New York as the only proper defendant before this Court.
Claimant short name:
FLEMMING
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :
The Court, sua sponte, has amended the caption to reflect the State of New York as the only proper defendant before this Court.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
110540
Motion number(s):
M-69951
Cross-motion number(s):
CM-69969
Judge:
NICHOLAS V. MIDEY JR.
Claimant's attorney:
WOODROW FLEMMING, Pro Se
Defendant's attorney:
HON. ELIOT SPITZER
Attorney General
BY: Joel L. Marmelstein, Esq.,
Assistant Attorney GeneralOf Counsel.
Third-party defendant's attorney:

Signature date:
May 16, 2005
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Defendant has brought this pre-answer motion (Motion No. M-69951) to dismiss based upon improper service of the claim. Defendant also seeks dismissal based upon claimant's alleged failure to comply with the provisions of Court of Claims Act § 10(9), which governs inmate bailment claims. Claimant has responded with a cross-motion (Cross-Motion No. CM-69969), not only in opposition to defendant's motion, but also seeking an order granting him summary judgment on his claim.

The following papers were considered by the Court in connection with these motions:
Pre-Answer Notice of Motion, Affirmation in Support, with Exhibits 1,2


Notice of Cross-Motion, Affidavit in Support, with Exhibits 3,4

Affirmation in Opposition to Cross-Motion 5


Notice, Reply Affirmation, with Attachment 6,7


Filed Papers: Claim.

Claimant, an inmate at Mohawk Correctional Facility, seeks damages in the amount of $345.00 for the loss of certain items of personal property, based upon allegations that correction officers failed to properly secure his personal property when he was removed from his residential unit on July 2, 2004. As such, this claim sounds in bailment, and inmate bailment claims are governed by Court of Claims Act § 10(9).

In its pre-answer motion to dismiss, defendant alleges that claimant has failed to exhaust his administrative remedies, a requirement which inmates must satisfy under § 10(9) prior to instituting a claim in this Court. The Court, however, has reviewed the claim filed with the Court, which contains an "Inmate Claim Form" (Form 1421). On this form, not only is there a notation that claimant's administrative claim was disapproved, there is also a notation that claimant's administrative appeal was also disapproved, completing the administrative process.

Accordingly, claimant has established, to the satisfaction of this Court, that he has exhausted his administrative remedies for this bailment claim, as required by Court of Claims Act § 10(9).

The main thrust of defendant's motion to dismiss, however, is based upon allegations that claimant failed to properly serve his claim upon the Attorney General in accordance with Court of Claims Act § 11(a).

Section 11(a) requires that a claim be served upon the Attorney General either personally or by certified mail, return receipt requested. In this particular matter, defendant contends that the claim was served upon the Attorney General by regular, first class mail, and not by certified mail, return receipt requested, as required by statute. In support of its motion, defendant's attorney has attached a copy of an envelope from claimant in which defendant contends the claim was mailed (see Exhibit B to Items 1,2). This envelope is addressed to Eliot Spitzer, and contains a postmark dated February 22, 2005, and postage of $.37. There are no markings on this envelope to indicate certified mail, return receipt requested, and the postage ($.37) is clearly insufficient for such services. Claimant, however, contends that the envelope referred to by defendant's attorney was not the envelope in which his claim was mailed, and that his claim was properly served upon the Attorney General.

In support of his contention, claimant has attached copies of various documents which he believes establishes proper mailing of his claim. Specifically, claimant has attached a copy of his disbursement request form, dated February 8, 2005, in which he requested funds of $4.65 for legal mailing to the Attorney General. Additionally, claimant has attached a copy of a receipt for certified mailing (#7004 1160 0005 4586 8410) in the amount of $4.88, which is also addressed to the Attorney General. Significantly, however, claimant has also attached a copy of the green receipt card for the same certified mailing (#7004 1160 0005 4586 8410), but this receipt card contains the address of the Court of Claims in Albany, and not the Attorney General. The receipt card has the signature of Sherri L. Devlin as the recipient of this mailing, dated February 22, 2005. The Court is aware that Sherri L. Devlin is employed by the Court of Claims, and was so employed on February 22, 2005. It also appears to the Court that all of the names and addresses set forth on the above exhibits are in the handwriting of the claimant.

Based on the foregoing, this Court finds that although claimant may have intended to serve his claim upon the Attorney General by certified mail, return receipt requested (as evidenced by his disbursement request form and the postal service receipt form), claimant instead mailed his claim for filing to the Court of Claims by certified mail, return receipt requested (as evidenced by the green receipt card signed by an employee of the Court of Claims).

The attachments provided by claimant fail to establish that his claim was mailed to the Attorney General by certified mail, return receipt requested. The Court has carefully examined all of the assertions made by claimant, and the attachments included by him, and can find no real evidence (such as a green receipt card signed by an authorized representative of the Attorney General) that the claim was properly served upon the Attorney General by certified mail, return receipt requested.[1]

Claimant has therefore failed to submit any evidence sufficient to raise a question of fact as to whether proper service was made upon the Attorney General in this claim. He has therefore failed to rebut defendant's assertions of improper service, which were supported by a copy of the envelope indicating that the claim was mailed by regular, first class mail, and not by certified mail, return receipt requested.

Furthermore, there has been no evidence submitted suggesting that prison officials failed to comply with claimant's request for mailing, that they interfered in any way with such mailing, or that they directed claimant's mail in any manner whatsoever.

The provisions relating to the time and manner of service and filing are jurisdictional prerequisites to the maintenance of a claim, and as such must be strictly construed (Greenspan Bros. v State of New York, 122 AD2d 249). As a result, this Court does not have the authority to cure or overlook defects in the manner of service, and failure to serve by certified mail, return receipt requested, must result in dismissal of the claim (Philippe v State of New York, 248 AD2d 827; Hodge v State of New York, 158 Misc 2d 438, affd 213 AD2d 766). Since defendant has established to the satisfaction of this Court that this claim was served by regular, first class mail, and not by certified mail, return receipt requested, this claim must be dismissed. The cross-motion of claimant for summary judgment, therefore is hereby rendered moot.

Accordingly, it is

ORDERED, that Motion No. M-69951 is hereby GRANTED; and it is further

ORDERED, that Cross-Motion No. CM-69969 is hereby DENIED; and it is further

ORDERED, that Claim No. 110540 is hereby DISMISSED.


May 16, 2005
Syracuse, New York

HON. NICHOLAS V. MIDEY JR.
Judge of the Court of Claims




[1] In his affidavit submitted in support of his cross-motion (see par. 5 to Item 4), claimant makes reference to a certified mailing to the Attorney General under Certificate #7004 1160 0005 4586 8434 in the amount of $5.11, dated March 22, 2005. Claimant, however, has not submitted any proof (such as a green receipt card) that this mailing was sent to the Attorney General, and the date (March 22, 2005) is beyond the date stamped on his claim by which the Attorney General acknowledges receipt of this claim (February 23, 2005) (see Exhibit A to Items 1,2). This particular mailing, occurring after the date on which the claim was received by the Attorney General, cannot possibly relate to the service of this particular claim, and such assertion by the claimant has been found to be without merit.