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
, 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.
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
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
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
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.