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).
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  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.
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,
In actuality, claimant never filed
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
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.
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
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
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
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
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.