Claimant, an inmate appearing pro se, moves for an order striking the
affirmative defenses contained in the defendant's verified answer. The State of
New York (hereinafter "State") opposes the motion and cross-moves for dismissal
based upon claimant's alleged failure to properly serve this claim pursuant to
Court of Claims Act 11. Claimant opposes the State's
Claimant alleges that 5 legal books, 2 non-legal books, 17 magazines, and a
bottle of shampoo were discovered missing from his personal storage bin in
Southport Correctional Facility on November 24, 2004 (books) and December 22,
This claim was served on the Office of the Attorney General on June 3, 2005 by
regular mail and filed with the Clerk of the Court on June 6, 2005. The State's
verified answer containing three affirmative defenses was filed with the Clerk
of the Court on July 7, 2005. The State's first affirmative defense alleges
improper service of the claim; the second affirmative defense alleges the claim
was not filed and served within 90 days of accrual; and the third affirmative
defense alleges claimant's own culpable conduct contributed to his injuries.
The State has withdrawn the second affirmative defense conceding that the wrong
statutory time period was cited therein.
The court will first examine the State's cross-motion for dismissal since it
addresses jurisdictional issues, namely the first affirmative defense alleging
improper service pursuant to CCA 11 (a). It is well-settled that the filing and
service requirements contained in the Court of Claims Act are jurisdictional in
nature and must be strictly construed. (Finnerty v New York State Thruway
Auth., 75 NY2d 721, 722-723). However, defects in mailing by an inmate can
result, upon proper proof, in an estoppel if the State is the cause of the
defect. (Wattley v State of New York, 146 Misc 2d 968; McCants v
State of New York, Ct Cl, June 8, 2001, Read, P.J., Claim No. 103533, Motion
Nos. M-63000 & M-63065 [estoppel applied where claimant submitted
disbursement/refund request slip showing that he requested service by certified
mail, rather than regular mail used by facility]).
The State contends that it received this claim on June 3, 2005 by regular mail,
rather than by personal service or certified mail, return receipt requested, as
required by CCA 11 (a). In support of this assertion, the State submits a copy
of the envelope in which said claim was received which clearly denotes that it
was sent by regular mail. (St's Ex A).
Claimant does not deny that he served the claim by regular
but argues that the State should be
estopped from raising the improper method of service as a defense because prison
officials improperly handled his request for certified mail, return receipt
requested. More specifically, claimant alleges that he made two disbursement
requests from his account on May 31, 2005 in order to pay for postage by
certified mail, return receipt requested, to the Clerk of the Court and the
Office of the Attorney General. (Claimant's Affidavit, ¶ 3). In fact, the
court granted claimant's request for an adjournment of these motions to submit
proof thereof. However, claimant's reply papers contain a copy of the
disbursement request form for mailing to the Clerk of the Court, but not the
Office of the Attorney General. Claimant asserts that prison officials did not
return to him his second disbursement request form nor follow his instructions.
However, without such proof, the court cannot accept claimant's mere assertions
that he ever made the second disbursement request in the first instance. In any
event, even if claimant had produced the second form, the court would still have
had no way of determining based only on claimant's conclusory statements whether
there was some delay due to claimant's own failure to adhere to some internal
facility mail regulations or whether prison officials improperly handled
claimant's request. Accordingly, the court finds that claimant's mere
allegation of the State's failure to act is insufficient to overcome the
presumption of regularity. (Wattley
, 146 Misc 2d at 969-970).
Consequently, the court finds that claimant has failed to submit sufficient
proof warranting the application of estoppel against the State in this instance
and, as such, the claim must be dismissed in its entirety due to claimant's
failure to comply with CCA 11 (a).
Accordingly, for the reasons stated above, it is ORDERED that the State's
cross-motion to dismiss, Motion No. CM-70619, is GRANTED; Claim No. 110971 is
DISMISSED; and claimant's motion to strike the affirmative defenses, Motion No.
M-70565, is DENIED as moot.
Claim, filed June 6, 2005.
Verified Answer, filed July 7, 2005.
Notice of Motion No. M-70565, dated July 29, 2005, and filed August 12,
Affidavit of Anthony D. Amaker, in support of motion, sworn to August 8,
Memorandum of Law, in support of motion, dated August 8, 2005.
Notice of Cross-Motion No. CM-70619, dated August 25, 2005, and filed August
Affirmation of Joseph F. Romani, AAG, in support of cross-motion and in
opposition to motion, dated August 25, 2005, with attached exhibits.