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
- 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.
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 §
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.