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
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.
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
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
ORDERED, that Claim No. 110540 is hereby DISMISSED.