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
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.
Claimant further alleges
that he served a notice of intention to file a claim on or about January 24,
, 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
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
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
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
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
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.