New York State Court of Claims

New York State Court of Claims

CONCEPCION v. THE STATE OF NEW YORK, #2005-030-530, Claim No. 110633, Motion No. M-69972


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:
Third-party defendant's attorney:

Signature date:
May 20, 2005
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers, numbered 1 to 3, were read and considered on Defendant's pre-answer motion to dismiss for lack of jurisdiction, brought pursuant to Court of Claims Act §§10 and 11:
1,2 Notice of Motion, Affirmation in Support by Jeane L. Strickland Smith, Assistant Attorney General and attached exhibits

  1. Filed papers: Claim

No Opposition Filed

After carefully considering the papers submitted and the applicable law the motion is disposed of as follows:

Juan Concepcion, the Claimant herein, alleges in Claim Number 110633 that Defendant's agents negligently or intentionally lost, seized or destroyed his confiscated property on or about March 22, 2004, while he was an inmate at Green Haven Correctional Facility (hereafter Green Haven). A Notice of Intention to file a Claim was served by certified mail, return receipt requested, on the Office of the Attorney General on December 9, 2004. [Affirmation in Support, ¶ 3 and Exhibit 1]. In the Notice of Intention, Claimant alleges that the final appeal determination on his facility claim was received on September 15, 2004. [ibid.]. The Claim was filed on March 14, 2005 in the Office of the Chief Clerk of the Court of Claims.

Defendant first argues that the Notice of Intention itself is defective in that it does not contain a date of accrual, nor does it describe how or why the personal property was removed from his cell.

Court of Claims Act §11(b) requires that a Notice of Intention ". . . state the time when and place where such claim arose, [and] the nature of same . . . " See also 22 NYCRR §206.6. The purpose of the Notice of Intention is to put the Defendant State on notice of potential suit against it, so that it may investigate the claim and infer a theory of liability. It also acts to extend the period within which a Claim must be served and filed, provided it has been properly served and contains the required information. While it need not be scrutinized with the same attention as a pleading, it should nonetheless perform its notice function, as well as provide specific enough information to determine whether any subsequently served and filed Claim is timely filed.

The Notice of Intention indicates when Claimant's administrative remedies were arguably exhausted, thus commencing the one hundred twenty (120) day period within which Claimant had to serve either a Notice of Intention, or serve and file a Claim. Court of Claims Act §10(9). Measured against the statutory requirements for the contents of a Notice of Intention, however, the Court agrees that it does not contain a date of accrual - that is, the date when Defendant's agents unlawfully seized his property, or Claimant demanded its return[1] - and is therefore defective. Accordingly, it did not operate to toll the period within which Claimant could serve and file his Claim, making the Claim ultimately served and filed untimely, because it was served more than one hundred twenty (120) days after his administrative appeal was denied.[2]

Defendant also argues that this Court does not have jurisdiction because the Claim itself was served on the Attorney General's Office by regular mail, as opposed to personal service or service by certified mail, return receipt requested, as required. Court of Claims Act §11(a)(i).

The filing and service requirements contained in Court of Claims Act §§10 and 11 are jurisdictional in nature and must be strictly construed. Finnerty v New York State Thruway Auth., 75 NY2d 721, 722-723 (1989). Indeed, the statute provides in pertinent part ". . . [n]o judgment shall be granted in favor of any claimant unless such claimant shall have complied with the provisions of this section applicable to his claim . . . " Court of Claims Act §10.

Service of a Claim upon the Attorney General by ordinary mail is generally insufficient to acquire jurisdiction over the State, unless the State has failed to properly plead jurisdictional defenses or raise them by motion. Court of Claims Act §11(c).

Additionally, the Claimant has the burden of establishing proper service, [Boudreau v Ivanov, 154 AD2d 638, 639 (2d Dept 1989)], by a preponderance of the evidence. See Maldonado v County of Suffolk, 229 AD2d 376 (2d Dept 1996). Regulations require that proof of service be filed with the Chief Clerk within ten (10) days of service on the defendant. 22 NYCRR § 206.5(a).

A claim alleging a negligence cause of action or an intentional tort, must be served and filed within ninety (90) days of its accrual, while inmate personal property loss claims, as noted above, must be served and filed within one hundred twenty (120) days after the inmate has exhausted the personal property claims administrative remedy. Court of Claims Act §§10(3), 10(3-b) and 10(9). With respect to negligence and intentional tort causes of action, if a claimant serves a Notice of Intention to file a Claim within ninety (90) days of accrual, then the time period within which to serve and file a claim is extended to two (2) years of accrual on any negligence cause of action, and one (1) year of accrual with respect to any intentional tort cause of action.

Thus assuming a date of accrual of March 22, 2004 as set forth in the Claim, the claim was not timely served and filed, nor has the Claimant established that he served the Claim upon the Attorney General by the means required.

Although one Affidavit of Service appended to the filed Claim indicates that the Claim and supporting papers were mailed on February 25, 2005 to the Attorney General's Office by certified mail, return receipt requested, a second Affidavit of Service indicates that the claim was served by regular mail upon the Attorney General on March 10, 2005. [See Claim No. 110633]. Notably, Claimant completed an Affidavit in Support of an application to waive the filing fee on February 25, 2005, and it may be that the Affidavit of Service attesting to mailing on February 25, 2005, attached as it is to the filing fee reduction application, refers to that set of papers.

Additionally, the certified mail receipt appended to the Claim appears to refer only to the Notice of Intention, since it indicates receipt of an item of mail in the Attorney General's Office on December 9, 2004, which conforms with the date of service of that document. [ibid. see also Affirmation in Support, Exhibit 2]. Given that there is no additional showing that the Claim was sent certified mail, return receipt requested, and that the Affidavit of Service attesting to service by regular mail is dated more closely in time to the date the Claim was received by the Attorney General and filed in the Office of the Chief Clerk of the Court of Claims, the Court is not persuaded that the Claim was served as required.

Thus the Claim herein is subject to dismissal on both grounds raised. First, the Notice of Intention is defective and did not operate to toll the period within which Claimant had to serve and file his Claim, rendering the Claim untimely. Second, Claimant has failed to establish, by a fair preponderance of the credible evidence, that the Attorney General was served with a copy of the claim as required by Court of Claims Act §11(a). The Defendant has raised these jurisdictional issues in a timely motion.

Accordingly, Defendant's motion to dismiss [M-69972] is granted, and Claim Number 110633 is hereby dismissed for a lack of jurisdiction.

May 20, 2005
White Plains, New York

Judge of the Court of Claims

[1] It is unclear whether it is a bailment claim or another property right cause of action that is asserted based upon the facts alleged.
[2] Or, if injury to property of another kind is the injury alleged, the Claim was served more than ninety (90) days after the claim accrued.