New York State Court of Claims

New York State Court of Claims

SMITH v. THE STATE OF NEW YORK, #2005-019-544, Claim No. 101701-A, Motion Nos. M-70205, M-70206


Synopsis


State's motion for summary judgment dismissing bailment claim is denied; claimant's motion for trial subpoenas is denied as well.

Case Information

UID:
2005-019-544
Claimant(s):
PRESTON A. SMITH
Claimant short name:
SMITH
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
101701-A
Motion number(s):
M-70205, M-70206
Cross-motion number(s):

Judge:
FERRIS D. LEBOUS
Claimant's attorney:
PRESTON A. SMITH, 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:
June 24, 2005
City:
Binghamton
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The State of New York (hereinafter "State") moves for dismissal of this claim based on claimant's failure to comply with the service and timeliness requirements of CCA 11 (Motion No. M-70205). Claimant, an inmate appearing pro se, opposes the State's dismissal motion and moves for the issuance of trial subpoenas (Motion No. M-70206). This matter is currently scheduled for trial on September 27, 2005 at the Elmira Correctional Facility.

The underlying bailment cause of action alleges that on August 2, 1999, claimant discovered that various items of his personal property were either lost or improperly donated without his permission at Southport Correctional Facility. Claimant's filing and/or service of different versions of a notice of intention and claim in this matter will be discussed in further detail hereinbelow.


State's Motion to Dismiss (M-70205)

To prove a bailment cause of action, claimant must demonstrate that his property was deposited with the State and that the State refused to return it after its return was demanded. (Weinberg v D-M Rest. Corp., 60 AD2d 550; Heede Hoist & Mach. Co. v Bayview Towers Apts., 74 AD2d 598). It is the date on which the State refuses to return the property that a bailment claim is deemed to have accrued. It is undisputed that this bailment claim accrued on August 2, 1999 and, as such, the timeliness of this claim pre-dates the effective date of CCA 10 (9).[1] Accordingly, the law applicable here required claimant to serve either a notice of intention to file a claim or file and serve a claim within 90 days of accrual of his cause of action. (CCA 10 [3] and 11). The State moves for dismissal on the grounds that this claim was not properly served in accordance with CCA 10 (3) and 11 as applicable to bailment claims prior to the effective date of CCA 10 (9). Due to the numerous documents at issue here and for sake of clarity, the court will review the sequence of events in chronological order.


Claimant attempted to file and serve a notice of intention on August 16, 1999 (hereinafter "Notice of Intention #1"). The State received Notice of Intention #1 by regular mail.[2] The State has submitted a photocopy of the envelope in which Notice of Intention #1 was received which clearly denotes that it was served by regular mail, rather than personal service or certified mail, return receipt requested, as required by CCA 11. The court finds that Notice of Intention #1 was improperly served pursuant to CCA 11.


Next, the State alleges that it received a claim by regular mail on September 3, 1999 (hereinafter "Claim #1"). (State's Exhibit B). Believing the claim had also been filed, the State filed a verified answer dated October 7, 1999.[3] In actuality, claimant never filed Claim #1.


On December 29, 1999, claimant filed a claim with the Clerk of the Court (hereinafter "Filed Claim #2"; Court Exhibit A). Filed Claim #2 is not identical to Claim #1, but sets forth the same bailment cause of action.


Also on December 29, 1999, claimant served the State with a second notice of intention, this time by certified mail, return receipt requested (hereinafter "Notice of Intention #2"). (State's Exhibit E). The State contends that Notice of Intention #2 was untimely served since it was received on December 29, 1999, which is more than 90 days after the date of accrual of August 2, 1999. The court agrees and finds Notice of Intention #2 was untimely served as required by CCA 11.

On or about January 25, 2000, the State received a copy of a letter to claimant from the Clerk of the Court acknowledging the filing of a claim on December 29, 1999 and designating the same as Claim No. 101701-A. (State's Exhibit F). This was the first time that the State realized that Claim #1 had never been filed and that it had sent in a verified answer to an unfiled claim. Upon learning this information, the State wrote the Clerk of the Court requesting that its verified answer dated October 7, 1999 be deemed as the verified answer submitted on Filed Claim #2, now designated as Claim No. 101701-A.


Next, on March 10, 2000, claimant served on the State yet another claim by certified mail, return receipt requested, regarding this same matter (hereinafter "Claim #3"). (State's Exhibit H). The court notes again that although Claim #3 details the same cause of action identified in Claim #1 and Filed Claim #2, each claim is slightly different in form.


Finally, on March 21, 2000, the Clerk of the Court sent claimant a letter, with a copy to the State, returning documents received and advising that amendments to a claim were only permissible by motion. (State's Exhibit I).


In sum and as outlined above, Notice of Intention #1 was ineffective due to improper service, while Notice of Intention #2 was untimely served. As such, the court now turns to the State's motion to dismiss the claim(s) allegedly filed and served.[4]


Regarding Claim #1, it is undisputed that Claim #1 was served on the State by regular mail. It is well-settled that the service requirements contained in the CCA are jurisdictional in nature and must be strictly construed. (Finnerty v New York State Thruway Auth., 75 NY2d 721, 722-723). As such, service of a claim upon the Attorney General's office must be by personal service or by certified mail return receipt requested. (CCA 11 [a]). The State submits a copy of the envelope in which Claim #1 was received which clearly denotes that it was sent by regular mail. It was claimant's burden to come forward to establish proper service which he has failed to do. (Commack Self-Serv. Kosher Meats v State of New York, 270 AD2d 687). The State raised the improper method of service of the claim as an affirmative defense in its verified answer. (CCA 11 [c]). The court is without discretion to waive these requirements and, as such, Claim #1 was improperly served as required by CCA 11 (a).


The State's arguments for dismissal of Filed Claim #2 and Claim #3 are directed to the issue of timeliness of the filing of Filed Claim #2 and service of Claim #3, namely that said filing and service were more than 90 days after accrual. It is undisputed that this matter accrued on August 2, 1999. As such, claimant had ninety days to file and serve a claim (until November 1, 1999), unless the State failed to raise, with particularity, the jurisdictional issues in its verified answer as required by CCA 11 (c). Filed Claim #2 was filed with the Clerk of the Court on December 29, 1999, which is more than ninety days after accrual. Claim #3 was served on the Attorney General's office by certified mail, return receipt requested, on March 10, 2000, also more than ninety days after accrual.


In other words, it is clear that the filing of Filed Claim #2 and service of Claim #3 were untimely. However, it is well-settled that any defense premised upon CCA 10 or 11 is waived unless raised, with particularity, either by way of a motion to dismiss before service of the responsive pleading or in the responsive pleading. (CCA 11 [c]). A close examination of the State's verified answer reveals that the second affirmative defense raises the jurisdictional defense of the improper manner of service of the claim, but does not raise any timeliness issues.


A review of the sequence of events appears to provide the explanation for the State's omission. The State thought at the time it filed the verified answer (in October 1999) that its answer related to Claim #1 which the State believed had been timely filed (in September 1999). When the State learned that the claim was not filed until December 29, 1999 and asked for its October 1999 verified answer to be deemed submitted in response thereto, that answer (prepared in October 1999) could not have addressed the timeliness issue that did not come into being until after its preparation. In hindsight, obviously, upon learning of the confusion regarding which claim had been filed and when, the State should have served an amended answer to raise, with particularity, the timeliness issue which was triggered by the filing of Filed Claim #2 on December 29, 1999. In any event, the State's existing affirmative defense clearly relates solely to the manner of service and not the timeliness of the filing of Filed Claim #2 or the timeliness of the service of Claim #3.


As such, this court finds the State waived the jurisdictional defense of timeliness by failing to raise, with particularity, the defense of the untimely filing of Filed Claim #2 and untimely service of Claim #3 pursuant to CCA 11 (c). Consequently, this court has jurisdiction to hear and determine this claim and the State's motion to dismiss must be denied.


Claimant's motion for trial subpoenas (M-70206)

Claimant, as an inmate proceeding pro se, is not a person authorized to issue subpoenas and, as such, must seek a court order allowing the issuance of a subpoena. (CPLR 2302). Accordingly, it is claimant's burden here to establish how each of the proposed witnesses is material and necessary to the prosecution of his claim. Claimant did not submit any proposed subpoenas with his motion papers. In any event, the court has reviewed claimant's notice of motion and supporting affidavit and cannot ascertain which, if any, witnesses and/or items claimant is seeking subpoenas for or why. Although claimant mentions two correction officers, as well as an individual named Carol A. Smith, claimant has failed to provide sufficient information from which this court could conclude that the testimony of any of these individuals is material and necessary to the prosecution of his claim. As such, claimant's request for trial subpoenas is denied.


Accordingly, in light of the foregoing, it is ORDERED that State's motion for dismissal, Motion No. M-70205, is DENIED and claimant's motion for trial subpoenas, Motion No. M-70206, is DENIED. The case remains scheduled for trial on September 27, 2005 at the Elmira Correctional Facility.


June 24, 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. Claim, filed December 29, 1999.
  2. Verified Answer, filed October 12, 1999.
  3. Notice of Motion No. M-70205, dated May 19, 2005, and filed May 23, 2005.
  4. Affirmation of Carol A. Cocchiola, AAG, in support of Motion No. M-70205, dated May 19, 2005, with attached exhibits.
  5. Notice of Motion No. M-70206, dated May, 20, 2005, and filed May 26, 2005.
  6. Affidavit of Preston A. Smith, in support of Motion No. M-70206, sworn to May 23, 2005.
  7. Affirmation of Carol A. Cocchiola, AAG, in opposition to Motion No. M-70206, dated June 20, 2005, and filed June 22, 2005.


[1] CCA 10 (9) became effective December 7, 1999, and now requires, among other things, inmates to exhaust their administrative remedies before serving and filing a claim sounding in bailment. (CCA 10 [9]). As such, here claimant was not required to exhaust his administrative remedies before commencing suit.

[2]Claimant attempted to file Notice of Intention #1 with the Clerk of the Court but was advised, in writing, that it was no longer necessary to file a notice of intention with the Clerk of the Court. (Chapter 466, Laws of 1995, effective August 2, 1995; State's Exhibit A).

[3]Through no fault of its own, the State inserted an incorrect claim number, namely No. 101066 on Claim #1. The State believed Claim #1 had been filed, due in part to a letter from the Clerk of the Court dated September 24, 1999.
[4]Claim #1, Filed Claim #2, and Claim #3 are each handwritten and contain the same basic allegations regarding the lost personal property discovered on August 2, 1999, but each are in slightly different form. The court finds that the fact that Filed Claim #2 is slightly different than Claim #1 or Claim #3 is not a reason, in and of itself, for dismissal.