New York State Court of Claims

New York State Court of Claims

SMITH v. THE STATE OF NEW YORK, #2005-009-061, Claim No. 111125, Motion Nos. M-70601, M-70602, M-70603


Synopsis


In this bailment claim, the claim was dismissed for improper service. The Court further found that the doctrine of equitable estoppel could not be applied against the State in this claim.

Case Information

UID:
2005-009-061
Claimant(s):
JEFF SMITH 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:
SMITH
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):
111125
Motion number(s):
M-70601, M-70602, M-70603
Cross-motion number(s):

Judge:
NICHOLAS V. MIDEY JR.
Claimant's attorney:
JEFF SMITH, Pro Se
Defendant's attorney:
HON. ELIOT SPITZER
Attorney General
BY: Thomas M. Trace, Esq.,
Senior AttorneyOf Counsel.
Third-party defendant's attorney:

Signature date:
December 5, 2005
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

In Motion No. M-70601, claimant seeks poor person relief under CPLR § 1101. In Motion No. M-70602, claimant has moved for summary judgment. In lieu of an answer, the State has moved for an order dismissing the claim, based upon improper service, under Motion No. M-70603. For purposes of judicial economy, all of these motions will be considered together herein.

The following papers were considered by the Court in connection with these motions:
"Application to Proceed in Forma Pauperis", with Attachments (M-70601) 1


Notice of Motion, Affidavit in Support (M-70602) 2,3

Attorney Affirmation in Opposition, with Exhibits (M-70602) 4


Affidavit in Response (Reply) (M-70602) 5


Notice of Motion, Affirmation in Support, with Exhibits (M-70603) 6,7


Affidavit in Opposition, with Exhibits (M-70603) 8


Reply Affirmation (M-70603) 9


Correspondence from Claimant, dated September 21, 2005 (M-70603) 10

In his claim, claimant, an inmate under the care and custody of the Department of Correctional Services, seeks damages in the amount of $435.79 for the loss, destruction, and/or damage to certain items of his personal property, which allegedly occurred in two separate incidents at Oneida Correctional Facility. Claimant alleges that the first incident occurred on November 19, 2004, when he was transferred to Oneida Correctional Facility. On that date, claimant alleges that correction officers damaged one of his typewriters during their inspection of his belongings, and that they threw out or destroyed several other items of personal property. Claimant then alleges that a second incident occurred on December 23, 2004, when certain items of personal property were either destroyed or damaged when he was admitted to the Special Housing Unit at the facility.

According to the submitted papers, claimant filed two administrative claims with Oneida Correctional Facility, which were denied, and his administrative appeals of these claims were also both subsequently denied.

In its motion to dismiss (M-70603), defendant acknowledges that a notice of intention to file a claim was served upon the Attorney General on June 29, 2005, by certified mail, return receipt requested. Defendant alleges, however, that shortly thereafter, claimant served his claim upon the Attorney General on July 18, 2005, but that this claim was served by regular, first class mail.

Defendant now seeks dismissal of this claim, contending that it was improperly served upon the Attorney General, in that claimant failed to comply with the service requirements set forth in Court of Claims Act § 11(a).

This bailment claim is governed by § 10(9) of the Court of Claims Act. This statute provides that any claim alleging the loss of personal property by an inmate in the custody of the Department of Correctional Services may not be filed "unless and until the inmate has exhausted the personal property claims administrative remedy". Furthermore, this statute requires that any such claim "must be filed and served within one hundred twenty days after the date on which the inmate has exhausted such remedy."

Initially, the Court notes that § 10(9) contains no provision authorizing the use of a notice of intention to extend the time in which an inmate may bring a claim alleging the loss of personal property. As a result, in this particular matter, the service of the notice of intention by claimant upon the Attorney General on June 29, 2005 is considered a nullity (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]; Gloster v State of New York, Ct Cl, June 5, 2002, McNamara, J., Claim No. 103662, Motion No. M-64877 [UID No. 2002-011-550])[1].

Claimant does not dispute the fact that his claim was served upon the Attorney General by regular, first class mail, and not by certified mail, return receipt requested. Defendant's attorney has attached a copy of the envelope in which the claim was mailed (see Exhibit D to Items 6,7) on which postage in the amount of $2.67 is indicated. This amount is insufficient postage for certified mail, return receipt requested service, and there are no markings on the envelope to indicate that this claim was mailed by any means other than regular, first class mail.

Court of Claims Act § 11(a) requires that a claim must be served upon the Attorney General either personally or by certified mail, return receipt requested (Hodge v State of New York, 213 AD2d 766). Furthermore, such a provision is a jurisdictional prerequisite to the institution and maintenance of a claim, and as such must be strictly construed (Greenspan Bros. v State of New York, 122 AD2d 249). Service of a claim which is not made in accordance with the provisions of § 11 is insufficient to confer jurisdiction over the State (Hodge v State of New York, supra). The use of ordinary mail to serve a claim upon the Attorney General is therefore insufficient to acquire jurisdiction (Bogel v State of New York, 175 AD2d 493).

Although claimant does not dispute the fact that his claim was served by regular, first class mail, he argues that § 11(a) requires that either a notice of intention to file a claim or a claim must be served by certified mail, return receipt requested. Since he served a notice of intention by certified mail, return receipt requested, he contends that service of his claim by regular, first class mail following proper service of a notice of intention satisfies the statutory requirements of § 11(a).

As noted above, however, this Court has determined that since the service of a notice of intention to file a claim in an inmate bailment claim is not expressly authorized by statute, it must therefore be considered a nullity. Accordingly, service of his claim by regular, first class mail, does not satisfy the requirements of § 11(a), and fails to confer jurisdiction upon this Court.

Additionally, assuming arguendo, that even if a notice of intention was permitted in this instance, Courts have uniformly held that pursuant to § 11(a), both the notice of intention and a claim must be served by certified mail, return receipt requested (see Hodge v State of New York, supra). Claimant also contends, in opposition to the State's motion, that he had specifically requested that his claim be mailed to the Attorney General by certified mail, return receipt requested, and that facility officers failed to comply with this request. He is apparently arguing that the State should be estopped from relying upon the defense of improper service, since it was through the State's actions that the claim was improperly served.

Several appellate courts have held, however, that equitable estoppel cannot be applied against the State to remedy against a jurisdictional defect (see Rodriguez v State of New York, 307 AD2d 657; Chapman v State of New York, 261 AD2d 814; Pagano v New York State Thruway Auth., 235 AD2d 408).

In this particular instance, however, the Court need not decide whether equitable estoppel is available to claimant as a defense, since the Court finds that estoppel should not be applied against the State under the facts and circumstances of this claim. In this matter, claimant alleges that he requested his claim be served by certified mail, return receipt requested. Although he provided copies of his "disbursement or refund request" form for his notice of intention (see Exhibit 2 to Item 8), as well as copies of the green receipt card establishing service of the notice of intention upon the Attorney General (see Exhibit 3 to Item 8) claimant failed to provide any such documentation to support his contention that he had requested such service with regard to service of his claim. Without any supporting documentation whatsoever, the Court must find that claimant is not entitled to rely upon the doctrine of equitable estoppel.

Accordingly, since this claim was served by regular, first class mail, and not by certified, return receipt requested, as required by § 11(a), it is jurisdictionally defective and must be dismissed.

As a result, claimant's application for poor person relief (M-70601) and his motion for summary judgment (M-70602) have both been rendered moot.

Therefore, it is

ORDERED, that Motion No. M-70603 is hereby GRANTED; and it is further

ORDERED, Motion No. M-70601 and Motion No. M-70602 are both hereby DENIED; and it is further

ORDERED, that Claim No. 111125 is hereby DISMISSED.


December 5, 2005
Syracuse, New York

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




[1] Unpublished decisions and selected orders of the Court of Claims are available via the Internet at http://www.nyscourtofclaims.state.ny.us/decisions.