New York State Court of Claims

New York State Court of Claims

BONET v. THE STATE OF NEW YORK, #2005-019-505, Claim No. 109668, Motion Nos. M-69423, M-69533


Synopsis


In lieu of an answer, the State moves to dismiss because claimant failed to comply with prior Decision & Order granting late filing relief in that claim was served by regular mail; motion granted; claim dismissed. Claimant's motion seeking permission to treat his notice of intention as a claim is denied.

Case Information

UID:
2005-019-505
Claimant(s):
PEDRO BONET
Claimant short name:
BONET
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
109668
Motion number(s):
M-69423, M-69533
Cross-motion number(s):

Judge:
FERRIS D. LEBOUS
Claimant's attorney:
PEDRO BONET, PRO SE
Defendant's attorney:
HON. ELIOT SPITZER, ATTORNEY GENERALBY: Carol A. Cocchiola, Assistant Attorney General, of counsel
Third-party defendant's attorney:

Signature date:
February 3, 2005
City:
Binghamton
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

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. 2004-019-544]).[1] 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).[2] (Bonet, 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 11-a." (Bonet, 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 court.[3] 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 (6).


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.


February 3, 2005
Binghamton, New York

HON. FERRIS D. LEBOUS
Judge of the Court of Claims


The court has considered the following papers in connection with these motions:
  1. DECISION AND ORDER, Lebous, J., Claim No. None, Motion No. M-68332, filed June 10, 2004.
  2. Claim No. 109668, filed July 28, 2004.
  3. Notice of Motion No. M-69423, dated August 26, 2004, and filed August 30, 2004.
  4. Affirmation of Carol A. Cocchiola, AAG, in support of Motion No. M-69423, dated August 26, 2004, with attached exhibits.
  5. Notice of Motion No. M-69533, dated December 26, 2004, and filed December 29, 2004.
  6. "Affirmation" of Pedro Bonet, dated December 26, 2004, in support of Motion No. M-69533, with attachment.
  7. 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.

[1]Selected unreported decisions from the Court of Claims are available via the Internet at

[2]As discussed herein, this relief was granted prior to the Fourth Department decision of Roberts v State of New York, 11 AD3d 1000, which determined 10 (6) relief was not available with respect to bailment claims.
[3]The State's motion was filed with the Clerk of the Court on August 30, 2004, but held pending payment by claimant of the applicable filing fee. (Bonet v State of New York, Ct Cl, August 6, 2004, Sise, P.J., Claim No. 109668).