New York State Court of Claims

New York State Court of Claims

AMAKER v. THE STATE OF NEW YORK, #2005-019-566, Claim No. 110971, Motion Nos. M-70565, CM-70619


State's cross-motion to dismiss granted due to claimant's failure to properly serve claim pursuant to CCA 11, claim dismissed; claimant's motion to strike affirmative defenses denied as moot.

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: Joseph F. Romani, Assistant Attorney General, of counsel
Third-party defendant's attorney:

Signature date:
December 12, 2005

Official citation:

Appellate results:

See also (multicaptioned case)


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 cross-motion.[1]

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, 2004 (shampoo).

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 The State has withdrawn the second affirmative defense conceding that the wrong statutory time period was cited therein.[2]

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 mail,[3] 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.

December 12, 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 June 6, 2005.
  2. Verified Answer, filed July 7, 2005.
  3. Notice of Motion No. M-70565, dated July 29, 2005, and filed August 12, 2005.
  4. Affidavit of Anthony D. Amaker, in support of motion, sworn to August 8, 2005.
  5. Memorandum of Law, in support of motion, dated August 8, 2005.
  6. Notice of Cross-Motion No. CM-70619, dated August 25, 2005, and filed August 29, 2005.
  7. Affirmation of Joseph F. Romani, AAG, in support of cross-motion and in opposition to motion, dated August 25, 2005, with attached exhibits.
8. Affidavit of Anthony D. Amaker in Reply to Defendant's Cross Motion, sworn to November 23, 2005 and filed November 30, 2005.

[1]Claimant submitted a "Notice of Motion for an Extension of Time" which the court treated as a request for an adjournment. The court granted an adjournment of both motions from August 31, 2005 to October 26, 2005. Thereafter, the court granted claimant's second request for an adjournment until November 30, 2005.
[2]The State's verified answer improperly referred to a 90 day period from accrual, rather than the 120 day time period applicable to bailment claims as set forth in CCA 10 (9). (Affirmation of Joseph R. Romani, AAG, ¶ 9).
[3]The court notes that claimant's affidavit of service of the claim alleges that he served this claim on the Office of the Attorney General and Clerk of the Court by certified mail, return receipt requested, but claimant's moving papers concede that such method of service was not accomplished.