New York State Court of Claims

New York State Court of Claims

FOLKS v. THE STATE OF NEW YORK, #2006-009-077, Claim No. 112365, Motion No. M-71955


Synopsis



Case Information

UID:
2006-009-077
Claimant(s):
LAWRENCE FOLKS
Claimant short name:
FOLKS
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
112365
Motion number(s):
M-71955
Cross-motion number(s):

Judge:
NICHOLAS V. MIDEY JR.
Claimant’s attorney:
LAWRENCE FOLKS, 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:
December 19, 2006
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Defendant has brought this motion seeking an order dismissing the claim based upon improper service of the claim.

The following papers were considered by the Court in connection with this motion:
Notice of Motion, Affirmation in Support, with Exhibits 1,2


“Opposition to Notice of Motion to Dismiss Claim”, with Attachments 3

Reply Affirmation 4


“Response to Defendant’s Reply Affirmation”, with Attachments 5


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 § 11(a).

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 improper service.

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 § 11(a).

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.

December 19, 2006
Syracuse, New York

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