New York State Court of Claims

New York State Court of Claims

DIGGS v. THE STATE OF NEW YORK, #2006-009-040, Claim No. 112034, Motion Nos. M-71450, M-71581


Synopsis


Defendant’s motion for dismissal of the claim based upon untimely and improper service was granted. Claimant’s motion for poor person relief was denied as moot.

Case Information

UID:
2006-009-040
Claimant(s):
ROBIN DIGGS
1 1.
The Court, sua sponte, has amended the caption to reflect the State of New York as the only proper defendant before this Court.
Claimant short name:
DIGGS
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :
The Court, sua sponte, has amended the caption to reflect the State of New York as the only proper defendant before this Court.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
112034
Motion number(s):
M-71450, M-71581
Cross-motion number(s):

Judge:
NICHOLAS V. MIDEY JR.
Claimant’s attorney:
ROBIN DIGGS, Pro Se
Defendant’s attorney:
HON. ELIOT SPITZER
Attorney General
BY: Thomas M. Trace, Esq.,
Senior AttorneyOf Counsel.
Third-party defendant’s attorney:

Signature date:
July 24, 2006
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant has brought a motion (M-71450) seeking poor person relief. Defendant has also submitted a motion (M-71581) on this claim seeking an order of dismissal based upon improper and untimely service. For purposes of judicial economy, both of these motions will be considered herein.

The following papers were considered by the Court in connection with these motions:
Affidavit in Support (M-71450) 1


Affirmation in Opposition (M-71450) 2


Correspondence dated March 27, 2006 from the Oneida County Department of Law

(M-71450) 3

Notice of Motion, Affirmation in Support, with Exhibits (including Affidavit of Roxanne LaBella-Fisher as Exhibit C) (M-71581) 4


Correspondence dated April 28, 2006 from claimant (in opposition) (M-71581) 5

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 receipt requested”.

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 further

ORDERED, that Claim No. 112034 is hereby DISMISSED.


July 24, 2006
Syracuse, New York

HON. NICHOLAS V. MIDEY JR.
Judge of the Court of Claims