New York State Court of Claims

New York State Court of Claims

URENA v. THE STATE OF NEW YORK, #2005-009-052, Claim No. 110555, Motion Nos. M-69891, M-69911, M-70033


Synopsis


Defendant's motion to dismiss the claim based upon improper service was granted. Claimant's reliance upon the doctrine of equitable estoppel was not accepted.

Case Information

UID:
2005-009-052
Claimant(s):
RAFAEL URENA
Claimant short name:
URENA
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
110555
Motion number(s):
M-69891, M-69911, M-70033
Cross-motion number(s):

Judge:
NICHOLAS V. MIDEY JR.
Claimant's attorney:
RAFAEL URENA, 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:
November 15, 2005
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

In Motion No. M-69891, claimant seeks poor person relief. Defendant has brought Motion No. M-69911 seeking an order dismissing the claim based upon improper service. Claimant has responded with Motion No. M-70033, in which he seeks an order dismissing affirmative defenses of the defendant. For purposes of judicial economy, all of these motions will be considered herein. The following papers were considered by the Court in connection with these motions:
Notice of Motion, Affidavit in Support (Motion No. M-69891) 1,2


Pre-Answer Notice of Motion, Affirmation in Support, with Exhibit (Motion No. M-69911) 3,4

Notice of Motion to Strike Affirmative Defense, Affidavit in Support, with Exhibits (Motion No. M-70033) 5,6

Supplemental Affirmation (Defendant), Reply Affidavit of Lynne Kelley, with Exhibits (Motion No. M-69911) 7,8


"Notice of Motion", Affidavit in Support, with Exhibits, from Claimant (Reply) 9,10

The Court will first address claimant's motion (M-70033) to strike defendant's affirmative defenses. In this particular matter, defendant has brought a pre-answer motion seeking an order dismissing the claim, and therefore has not yet served or filed an Answer. Accordingly, defendant has not yet pleaded any affirmative defenses, and therefore claimant's motion is, at best, premature. Nevertheless, the Court, in its discretion, has considered this motion (M-70033) as opposition to defendant's motion (M-69911), in which defendant seeks an order dismissing the claim based upon improper service.

In his claim, claimant seeks damages for the loss of personal property which occurred at Oneida Correctional Facility on or about September 17, 2003.

Pursuant to § 10(9) of the Court of Claims Act, an inmate bailment claim must be filed and served within 120 days after the date on which the inmate exhausted his administrative remedies. According to claimant, on November 2, 2004, he received a determination that his administrative appeal of this claim had been denied.[1] Claimant further alleges that he served a notice of intention to file a claim on or about January 24, 2005[2], and that he presented his claim for mailing to officials at Bare Hill Correctional Facility on February 16, 2005. Defendant acknowledges receipt of the claim on February 24, 2005, which was mailed February 23, 2005 from Bare Hill Correctional Facility. (See Exhibit A to Items 3,4). The claim was filed with the Clerk of the Court of Claims on February 24, 2005.

As evidenced by the dates referenced above, this claim was timely served within the 120 days provided by § 10(9). In its motion to dismiss, however, defendant contends that the claim was improperly served, in that it failed to comply with the service requirements of § 11(a)(i) of the Court of Claims Act.

Pursuant to § 11(a)(i), a claim must be either personally served on the Attorney General, or served by certified mail, return receipt requested. In this matter, defendant has attached a copy of the mailing envelope which was used to mail the claim to the Attorney General. (See Exhibit A to Items 3,4). Although the metered postage label is barely visible on the copy presented to the Court, defendant alleges, without contradiction from claimant, that postage in the amount of $1.29 was affixed to this envelope, an amount which is clearly insufficient to cover the cost of certified mail, return receipt requested service. Furthermore, there are no markings on the envelope to indicate that the claim was to be mailed, or was mailed, by certified mail, return receipt requested.

It is well established that the time and manner of service requirements of the Court of Claims Act are jurisdictional in nature, that they must be strictly construed, and that they may not be waived if raised, with sufficient particularity, either in defendant's answer or in a pre-answer motion (see Dreger v New York State Thruway Auth., 81 NY2d 721; Finnerty v New York State Thruway Auth., 75 NY2d 721; Bogel v State of New York, 175 AD2d 493). Defendant therefore seeks dismissal of this claim based upon the failure to comply with the manner of service requirements set forth in § 11(a)(i).

Claimant does not dispute that his claim was in fact served by regular, first class mail, rather than by certified mail, return receipt requested, as required by statute. However, claimant has submitted copies of his "Disbursement or Refund Request" form (see Exhibit to Items 5,6), dated February 22, 2005, which clearly indicates that claimant requested "certified mail with return receipt" for an item to be mailed to the Attorney General, and that he authorized the amount of postage for this service to be deducted from his inmate account. Since he had specifically requested that his claim be mailed to the Attorney General by certified mail, return receipt requested, claimant asserts that the State should be estopped from relying upon the defense of improper service, arguing that the State's actions caused claimant to improperly serve his claim.

In support of his contention, claimant relies upon the case of Wattley v State of New York, 146 Misc 2d 968. In Wattley, an inmate also requested service by certified mail, return receipt requested, and officials used regular mail for service of his claim, even though his inmate account was actually deducted for the cost of the certified mailing, return receipt requested. As a result, the Court applied equitable estoppel against the State and denied the State's motion to dismiss the claim. The Court noted that claimant "did what he was supposed to do and all that defendant allowed" and that by doing so, "the burden was on defendant to explain why claimant's instructions were not complied with." (Wattley v State of New York, supra at 970).

Interestingly, several appellate courts have held that equitable estoppel cannot be applied against the State to remedy a jurisdictional defect (see Chapman v State of New York, 261 AD2d 814; Pagano v New York State Thruway Auth., 235 AD2d 408). Additionally, in a claim with facts similar to Wattley, the Appellate Division, Third Department specifically held that "[a] lack of subject matter jurisdiction is a defect that cannot be overlooked or remedied by either waiver or estoppel." (Rodriguez v State of New York, 307 AD2d 657).

In this particular claim, however, the Court need not decide whether equitable estoppel is available to claimant as a defense, since the Court herein finds that estoppel should not be applied to the facts and circumstances of this claim.

In this matter, claimant unquestionably requested "certified mail with return receipt" on his "Disbursement or Refund Request" form, thereby placing the burden upon defendant to provide a satisfactory explanation as to why these instructions were not followed. With its Supplemental Affirmation (Item 7), defendant has submitted the affidavit of Lynne Kelley, the Senior Mail and Supply Clerk at Bare Hill Correctional Facility (Item 8). In her affidavit, Ms. Kelley explains that not only must an inmate specify on his "Disbursement or Refund Request" form that postage is required for certified mail, return receipt requested, the inmate must also provide the facility postal clerk with the appropriate United States Postal Service ("USPS") forms for certified mailing. These forms include USPS Form 3800, which is a "certified mail receipt" in which an inmate must provide the name and address of the recipient of the mailing. Additionally, an inmate must provide USPS Form 3811 the actual green return receipt card, in which the inmate must provide the recipient's name and address, as well as insert his own return address on the reverse side of this form.

Ms. Kelley states in her affidavit that claimant failed to provide the facility postal clerk with these required forms, and as a result, it was not possible for the facility to process his request and provide him with the certified mail, return receipt requested service. Claimant has not disputed these allegations, and has presented no evidence whatsoever that he provided the facility postal clerk with these required forms, or any explanation as to why he was unable to provide them.

As a result, since claimant did not provide the facility postal clerk with all of the required forms to insure that his claim was mailed by certified mail, return receipt requested, the Court finds that claimant is not entitled to rely upon the doctrine of equitable estoppel in these circumstances. Accordingly, since the claim was not served personally or by certified mail, return receipt requested as required by § 11(a)(i), it is jurisdictionally defective and must be dismissed. As a result, claimant's application for poor person status (M-69891) has been rendered moot.

Therefore, it is

ORDERED, that Motion No. M-69911 is hereby GRANTED; and it is further

ORDERED, that Motion No. M-69891 and Motion No. M-70033 are both hereby DENIED; and it is further

ORDERED, that Claim No. 110555 is hereby DISMISSED.


November 15, 2005
Syracuse, New York

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




[1] The 120 day period in which an inmate may file and serve his bailment claim is measured from the date that the inmate receives a denial of his request for administrative review, and not on the actual date that the request was denied (see Blanche v State of New York, 17 AD3d 1069).
[2] This Court has previously determined that since § 10(9) contains no provision permitting the use of a notice of intention, service of a notice of intention in inmate bailment claims does not operate to extend the time in which a claim must be served and filed (see Cepeda v State of New York, Ct Cl, October 22, 2001, Midey, Jr., J. Claim No. 104717, Motion No. M-64015 [UID No. 2001-009-049]). Unpublished decisions and selected orders of the Court of Claims are available via the Internet at