New York State Court of Claims

New York State Court of Claims

VAZQUEZ v. THE STATE OF NEW YORK, #2005-019-545, Claim No. 102152, Motion No. M-70216


State's motion to dismiss is granted due to claimant's failure to properly serve claim, as well as failure to comply with CCA 10 (9); claim dismissed.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant's attorney:
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

Official citation:

Appellate results:

See also (multicaptioned case)


The State of New York (hereinafter "State") moves to dismiss this claim for lack of jurisdiction due to claimant's failure to properly serve this claim pursuant to Court of Claims Act (hereinafter "CCA") 11. Claimant, an inmate appearing pro se, opposes the motion. This matter is currently scheduled for trial on October 25, 2005 at the Elmira Correctional Facility.

In this court's view, the gravamen of this claim is bailment in nature, even though claimant describes his claim in terms of "negligence and discrimination" based upon "discrimination, extortion, deliberate denial of privileges, mental anguish."[1] (Claim, ¶ 2). More specifically, claimant asserts that his headphones were damaged and that he was deprived of access to the same on or about February 17, 2000 at Elmira Correctional Facility.

By all accounts, claimant served a notice of intention upon the Attorney General's Office on March 10, 2000, by certified mail, return receipt requested. (State's Exhibit A). The claim itself was served upon the Attorney General's Office on March 15, 2000, by regular mail. (State's Exhibit B). The claim was then filed with the Clerk of the Court on March 20, 2000. The State filed a verified answer on April 21, 2000 which contained a jurisdictional defense which raised, with particularity, the issue that the claim was improperly served by regular mail. (State's Exhibit C; CCA 11 [c]).

The State's motion to dismiss will be granted for several reasons. Initially, the court notes that because this bailment cause of action accrued on or about February 17, 2000 it is governed by CCA 10 (9).[2] CCA 10 (9) states as follows:
[a] claim of any inmate in the custody of the department of correctional services for recovery of damages for injury to or loss of personal property may not be filed unless and until the inmate has exhausted the personal property claims administrative remedy, established for inmates by the department. Such claim must be filed and served within one hundred twenty days after the date on which the inmate has exhausted such remedy.

The first basis for dismissal was not raised by the State in its motion papers. The Department of Correctional Services has established a two-tier system for handling personal property claims consisting of an initial review and an appeal. (7 NYCRR 1700.3). It was claimant's burden of establishing the exhaustion of said two step process with respect this claim. Neither the notice of intention (ineffective as it may be as discussed below) nor the claim contain any allegation whatsoever regarding whether claimant exhausted his administrative remedies prior to commencing this claim as required by CCA 10 (9). As such, there is nothing in this record from which this court could conclude that claimant pursued, let alone exhausted, the administrative remedies available to him pursuant to 7 NYCRR Part 1700. Consequently, the court finds claimant has not demonstrated that he exhausted the available administrative remedies pursuant to CCA 10 (9) and, as such, may not pursue his claim in this venue.

Next, as a separate and distinct basis for dismissal is the issue raised by the State, namely the improper service of the claim 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 said claim 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 court is without discretion to waive these requirements and, as such, the claim must be dismissed due to claimant's failure to properly serve the claim in compliance with CCA 11 (a).

Finally, the court notes that claimant's service of a notice of intention in connection to this bailment claim is of no legal consequence. (Cepeda v State of New York, Ct Cl, October 22, 2001, Midey, Jr., J, Claim No. 104717, Motion No. M-64015 [UID No. 2001-009-049]).[3]

Accordingly, due to claimant's failure to properly serve this claim, as well as his failure to comply with CCA 10 (9), it is ORDERED that the State's motion to dismiss, Motion No. M-70216 is GRANTED and Claim No. 102152 is DISMISSED. Consequently, this trial which was scheduled for October 25, 2005 at Elmira Correctional Facility is stricken from the court's calendar.

June 24, 2005
Binghamton, New York

Judge of the Court of Claims

The court has considered the following papers in connection with this motion:
  1. Claim, filed March 20, 2000.
  2. Verified Answer, filed April 21, 2000.
  3. Notice of Motion No. M-70216, dated May 18, 2005, and filed May 20, 2005.
  4. Affirmation of Carol A. Cocchiola, AAG, in support of motion, dated May 18, 2005, with attached exhibits.
  5. "Notice of Motion In Opposition", dated May 23, 2005, and unfiled.
  6. "Affirmation in Opposition" of Luis A. Vazquez, in opposition to motion, dated May 23, 2005, with attachments.

[1]This claim may also be read as attempting to allege a cause of action for intentional infliction of emotional distress, however, it is well settled that "[p]ublic policy prohibits the maintenance of a suit against the State for intentional infliction of emotional distress [citations omitted]." (Brown v State of New York, 125 AD2d 750, 752, appeal dismissed 70 NY2d 747).
[2]CCA 10 (9) became effective December 7, 1999.

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