Reply Affirmation 4
“Response to Defendant’s Reply Affirmation”, with
Filed Papers: Claim.
In this claim, claimant, an inmate under the care and custody of the Department
of Correctional Services, alleges that he was subjected to sexual harassment by
a correction officer at Oneida Correctional Facility. As set forth in his
claim, he alleges that this harassment began in the mid-January, 2006.
In this motion to dismiss, defendant acknowledges that a notice of intention to
file a claim was served upon the Attorney General on February 10, 2006, by
certified mail, return receipt requested (see Exhibits A and B to Items 1,2).
Defendant alleges, however, that claimant then served his claim upon the
Attorney General on May 23, 2006, but that the claim was served by regular,
first class mail. Defendant now seeks dismissal, contending that claimant has
failed to comply with the service requirements set forth in Court of Claims Act
Court of Claims Act § 11(a) requires that a claim must be served upon the
Attorney General either personally or by certified mail, return receipt
requested (Hodge v State of New York, 213 AD2d 766). Furthermore, such a
provision is a jurisdictional prerequisite to the institution and maintenance of
a claim, and as such must be strictly construed (Greenspan Bros. v State of
New York, 122 AD2d 249). Service of a claim which is not made in accordance
with the provisions of § 11 is insufficient to confer jurisdiction over the
State (Hodge v State of New York, supra). The use of ordinary
mail to serve a claim upon the Attorney General is therefore insufficient to
acquire jurisdiction (Bogel v State of New York, 175 AD2d 493).
In this matter, defendant’s attorney has attached a copy of the envelope
in which the claim was mailed (see Exhibit D to Items 1,2), on which postage in
the amount of $1.17 is affixed. This amount is insufficient postage for
certified mail, return receipt requested service, and there are no markings on
the envelope to indicate that this claim was mailed by any means other than by
regular, first class mail. Accordingly, this Court finds and determines that
the claim was served by regular, first class mail, and not by certified mail,
return receipt requested, as required by § 11(a).
In his response to this motion (see Item 3), claimant has attached documents
which seem to indicate that claimant had submitted a request for certified
mailing of his claim to officials at Mid-State Correctional Facility in May
2006, and that this request was apparently denied. An unsigned note is attached
to these documents stating: “Inmate must show proof that these envelopes
are court mandated to be there by a certain date”. The Court (and
defendant’s attorney) has interpreted these documents as an assertion by
claimant that the State should be estopped from relying upon the defense of
Interestingly, in his response (see Item 5) to defendant’s reply (see
Item 4), claimant did not address the estoppel issue which was raised in the
reply, but instead he contends that service of his notice of intention by
certified mail, return receipt requested, satisfies the service requirements
contained in § 11(a).
With regard to estoppel, the “misfeasance or malfeasance on the part of
facility officials may be a proper excuse to timely file” a claim,
entitling a claimant, under certain circumstances, to rely upon the defense of
estoppel (Rivera v State of New York, 5 AD3d 881; see also Wattley v
State of New York, 146 Misc 2d 968).
In this particular instance, although the Court finds that claimant made an
initial request to facility officials to have his claim served by certified
mail, return receipt requested, he has submitted no evidence whatsoever to
establish that he pursued his request, or submitted any further information to
facility officials when his initial request was denied for lack of supporting
information. This Court therefore finds that claimant is not entitled to rely
upon the doctrine of equitable estoppel.
Furthermore, and addressing the issue raised in claimant’s response to
defendant’s reply, even though defendant acknowledges that
claimant’s notice of intention was properly served, Courts have uniformly
held that pursuant to § 11(a), both the notice of intention to file
a claim and a claim must be served by certified mail, return receipt requested
(see Hodge v State of New York, 213 AD2d 766). Accordingly, based upon
the Court’s earlier determination herein that the claim was served by
regular, first class mail, and not by certified mail, return receipt requested,
the claim is jurisdictionally defective and must be dismissed.
Even though this claim must be dismissed, based upon improper service of the
claim, the Court again notes (based upon the facts acknowledged by defendant in
this application) that the notice of intention to file a claim has been timely
and properly served. Additionally, it appears that claimant’s time to
properly file and serve a claim has not yet expired, either under § 10(3)
or § 10(3-b) of the Court of Claims Act. Therefore, claimant, at his
option, may still be able to pursue his cause of action in a new claim, provided
that the claim is filed and served within the time periods set forth in §
10(3) or § 10(3-b), and that such service complies with the requirements of
Based upon the foregoing, it is
ORDERED, that Motion No. M-71955 is hereby GRANTED; and it is further
ORDERED, that Claim No. 112365 is hereby DISMISSED.