In lieu of an answer, the State of New York (hereinafter "State") moves to
dismiss this claim for lack of jurisdiction due to improper service of the claim
pursuant to the prior Decision & Order of this court which granted claimant
permission to file a late claim. (Bonet v State of New York
, Ct Cl, June
7, 2004, Lebous, J., Claim No. None, Motion No. M-68332 [UID No.
Claimant opposes the motion
and moves for permission to treat his notice of intention as the claim pursuant
to CCA 10 (8).
This is a bailment claim arising from the alleged loss of claimant's personal
property during his incarceration at Southport Correctional Facility on or about
July 2, 2003. Claimant was granted permission to file a late claim pursuant to
CCA 10 (6).
, Ct Cl, June 7,
2004, Lebous, J., Claim No. None, Motion No. M-68332 [UID No. 2004-019-544]).
Claimant was directed to file and serve the permitted claim within 60 days of
the filing of said Decision and Order "[i]n conformity with all applicable
statutes and rules of the court with particular reference to CCA 10, 11 and
, p 4). This permitted claim was served on the Office of
the Attorney General by regular mail on July 28, 2004 and filed with the Clerk
of the Court on July 28, 2004.
The State moves to dismiss on the ground that this claim was served by regular
mail, rather than personal service or certified mail, return receipt requested,
as required by the prior Decision and Order of this
It is a fundamental principle of
practice in the Court of Claims that the filing and service requirements are
jurisdictional in nature and must be strictly construed. (Finnerty v New
York State Thruway Auth
., 75 NY2d 721, 722-723). That having been said,
however, this court has previously distinguished cases in which the failure to
adhere to CCA 10 and 11 has been deemed jurisdictionally fatal in the first
instance as compared to the situation here in which a claimant is alleged to
have failed to comply with the court's prior Decision & Order. Here,
claimant admits that he served the claim by regular mail. (Claimant's
Affirmation, ¶ 5).
Generally, the fact a claimant has failed to comply with the terms of a prior
10 (6) Decision & Order is not a fatal defect since the original timely 10
(6) motion satisfies the purpose of the statute of limitations. (Oparaji v
City University of New York, Ct Cl, April 6, 2000, Lebous, J., Claim No.
None, Motion No. M-61212 [UID No. 2000-019-510]; see also Holmes v State of
New York, Ct Cl, October 28, 1988, Silverman, J., Claim No. 74926, Motion
No. M-39257, p 4; Griffin v John Jay Coll., 266 AD2d 16). So, under
other circumstances this court would deem claimant's motion as an application
for an extension of time to comply with the terms of this court's prior Decision
and Order granting permission to serve and file a late claim pursuant to CCA 10
However, at the time of this court's prior Decision & Order this court had
the jurisdiction to review and determine the CCA 10 (6) motion relative to a
bailment cause of action. Although there was disagreement at the time amongst
the judges of the Court of Claims as to whether CCA 10 (6) included bailment
claims under CCA 10 (9), there was no appellate authority at the time of this
court's Decision & Order to the contrary. In the interim, however, on
October 1, 2004 the Fourth Department issued a decision determining that late
claim relief under CCA 10 (6) was not available to bailment claims accruing
under CCA 10 (9). (Roberts v State of New York, 11 AD3d 1000). Since
the doctrine of stare decisis requires trial courts to follow precedents from
other Appellate Divisions until such time as either the Court of Appeals or the
applicable Appellate Division, here the Third Department, order to the contrary,
this court is bound by the holding in Roberts. (Mountain View Coach
Lines v Storms, 102 AD2d 663, 664). Accordingly, this court finds that it
does not now have the authority to extend claimant's time to comply with the
terms of this court's prior Decision and Order. For that reason the court must
grant the State's motion to dismiss due to claimant's failure to comply with the
prior Decision & Order of this court and may not make allowance for further
attempts by claimant.
Finally, to the extent that claimant also moves to have his notice of intention
treated as the claim pursuant to CCA 10 (8), said motion must be denied as well.
Claimant did allege in his prior application for permission to late file that he
had served a notice of intention on or about September 26, 2003. However, in
connection with said prior Decision & Order this court noted that the
service of a notice of intention in connection with a bailment claim was of no
legal consequence. (Bonet, n 2). Moreover, it has been held that since
CCA 10 (9) does not contain any reference to notices of intention, any relief
available under CCA 10 (8) (which allows a notice of intention to be deemed the
claim in certain circumstances) is not available. (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]). As such, claimant's motion to treat his notice
of intention as a claim must be denied.
Accordingly, for the reasons stated above, it is ORDERED that the State's
motion to dismiss, Motion No. M-69423, is GRANTED; and Claim No. 109668 is
DISMISSED; and claimant's motion to treat his notice of intention as a claim,
Motion No. M-69533, is DENIED.
DECISION AND ORDER, Lebous, J., Claim No. None, Motion No. M-68332, filed June
Claim No. 109668, filed July 28, 2004.
Notice of Motion No. M-69423, dated August 26, 2004, and filed August 30,
Affirmation of Carol A. Cocchiola, AAG, in support of Motion No. M-69423, dated
August 26, 2004, with attached exhibits.
Notice of Motion No. M-69533, dated December 26, 2004, and filed December 29,
"Affirmation" of Pedro Bonet, dated December 26, 2004, in support of Motion No.
M-69533, with attachment.
Affirmation of Carol A. Cocchiola, AAG, in opposition to Motion No. M-69533,
dated January 31, 2005, and filed February 2, 2005, with attached exhibit.