Filed Papers: Claim,
Order of Presiding Judge Richard E. Sise dated and filed March 17, 2006.
In this claim, claimant, an inmate proceeding pro se, seeks damages for
personal injuries suffered by him when he allegedly slipped and fell at the
back entrance of the Laundry Room at Mohawk Correctional Facility on September
20, 2005. Claimant also seeks damages based upon allegations of medical
malpractice in the treatment of his injuries.
In his affirmation in support of the State’s motion to dismiss (M-71581),
the Assistant Attorney General handling this claim on behalf of the State
acknowledges that a notice of intention to file a claim was received by the
Attorney General on November 14, 2005. This document was apparently received by
the Attorney General via courier service on that date. The envelope (a copy of
which is annexed as Exhibit B) contains no indication of any postage, but does
contain a notation (in what appears to be claimant’s handwriting) that the
contents of the envelope constitute “legal mail”.
As set forth in the affidavit of Roxanne LaBella-Fisher, Senior Mail and Supply
Clerk at Mohawk Correctional Facility, this envelope (containing
claimant’s notice of intention), rather than being mailed, was included in
intra-departmental mail which was delivered by courier from Mohawk Correctional
Facility to the central office of the Department of Correctional Services in
Albany. From there, presumably this envelope was eventually delivered to the
Office of the Attorney General in Albany.
Subsequently, a claim was served upon the Attorney General on March 3, 2006, by
certified mail, return receipt requested.
Pursuant to Court of Claims Act § 10(3), a claim premised upon negligence
must be served on the Attorney General and filed with the Clerk of the Court of
Claims within 90 days of accrual. This time for service and filing of a claim,
however, can be extended if a notice of intention is properly served upon the
Attorney General within such 90 days. Pursuant to § 11(a) of the Court of
Claims Act, both a notice of intention and a claim must be served either
personally or by certified mail, return receipt requested.
In this particular matter, defendant asserts that the notice of intention was
not properly served, since it was received by the Attorney General through
inter-departmental courier service. As a result, defendant further asserts that
the claim was not timely served upon the Attorney General. In his letter
response to this motion (see Item 5), claimant contends that he has effectively
complied with the service requirements of § 11(a), since he clearly
indicated on this envelope that the contents constituted “legal
mail”. In other words, claimant is apparently attempting to equate
“legal mail” with “certified mail, return receipt
requested” mail service.
As set forth in the affidavit of Ms. LaBella-Fisher, if an inmate desires a
document to be sent by certified mail, return receipt requested, the required
postage must be paid from that inmate’s prison account. A Disbursement
Request form together with the required Postal Service documents must be
prepared by the inmate and delivered to the facility mail clerk for processing.
“Legal mail”, on the other hand, is a different type of request.
The postage required for “legal mail” is not charged against an
inmate’s prison account, and it is sent by regular mail at the expense of
the Department of Correctional Services. An important distinction, therefore,
exists between “legal mail” and “certified mail, return
In this particular matter, it is clearly evident from the documentation
submitted by defendant that this notice of intention was not served by certified
mail, return receipt requested, and there is no indication that claimant had
submitted any of the appropriate documents to the facility mail clerk to request
such mail service. This Court therefore determines that the notice of intention
was not properly served upon the Attorney General as required by § 11(a) of
the Court of Claims Act.
The service and filing requirements of the Court of Claims Act are
jurisdictional prerequisites to the institution and maintenance of a claim
against the State and therefore must be strictly construed (Finnerty v New
York State Thruway Auth., 75 NY2d 721; Byrne v State of New York, 104
AD2d 782, lv denied 64 NY2d 607). In this case, since the notice of
intention was not served in accordance with the requirements of Court of Claims
Act § 11(a), it must be considered a nullity, and therefore this notice did
not extend the time in which to file and serve a claim as permitted by §
10(3). Since it is undisputed that the claim was not served and filed within 90
days of accrual, this Court must therefore find that this claim was not timely
served or filed, and therefore must be dismissed.
Based upon this finding, claimant’s motion (M-71450) seeking poor person
relief is rendered moot.
Accordingly, it is
ORDERED, that Motion No. M-71581 is hereby GRANTED; and it is further
ORDERED, that Motion No. M-71450 is hereby DENIED as moot; and it is
ORDERED, that Claim No. 112034 is hereby DISMISSED.