New York State Court of Claims

New York State Court of Claims

CHATMAN v. THE STATE OF NEW YORK, #2006-028-526, Claim No. 111475, Motion No. M-70861


Synopsis



Case Information

UID:
2006-028-526
Claimant(s):
MATTHEW T. CHATMAN
Claimant short name:
CHATMAN
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
111475
Motion number(s):
M-70861
Cross-motion number(s):

Judge:
RICHARD E. SISE
Claimant's attorney:
MATTHEW T. CHATMAN, pro se
Defendant's attorney:
HON. ELIOT SPITZER, ATTORNEY GENERAL
BY: Belinda A. Wagner, Esq.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
March 20, 2006
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers were read on Defendant's motion for an order of dismissal:

1. Notice of Motion and Supporting Affirmation of Belinda A. Wagner, AAG, with annexed Exhibits


2. Affidavit in Opposition of Matthew T. Chatman, pro se


3. Reply Affirmation of Belinda A. Wagner, AAG


Filed papers: Claim


The Claim in this action alleges that on June 24, 2005, at Greene Correctional Facility, Claimant was physically and sexually assaulted by two Correction Officers who were performing a strip frisk. On August 22, 2005, within 90 days of the date of this incident, Claimant properly served a Notice of Intention on the Attorney General (Wagner affirmation, ¶ 4).

His claim was subsequently filed with the Clerk of the Court on October 7, 2005, shortly after it was served on the Attorney General on September 20, 2005 (id. Exhibit A). Service of the Claim was by way of regular mail, rather than by certified mail, return receipt requested as required by section 11(a) of the Court of Claims Act. Defendant now moves for an order dismissing the Claim on the ground that it was improperly served.

In opposition to the motion, Claimant argues that he was unable to serve the claim by any method other than regular mail because he did not have the financial resources to employ the more expensive form of mail (Chatman affidavit, ¶ 3). This argument is unavailing.

Directive 4421(III)(A)(3)(c) of the Department of Correctional Services (hereinafter DOCS) provides that advances for legal mail shall be made when required by statute or court rule and that no request for a legal mail advance is to be denied without prior consultation with department counsel (see also 7 NYCRR 721.3 (a) (3) (iv) and (vi) [procedures for handling of outgoing legal mail when an inmate does not have a sufficient balance remaining for his weekly free postage]). Inmates need only submit disbursement forms requesting a "special service" (certified mail, return receipt requested) for mail sent to the Attorney General, as that form of service is required by Court of Claims Act § 11[a] (see Espinal v State of New York, 159 Misc 2d 1051, 1054-1055 [Ct Cl 1993]).

Compliance with the time and service requirements contained in the Court of Claims Act is a jurisdictional prerequisite to commencing an action in this Court (Dreger v New York State Thruway Auth., 81 NY2d 721, 724 [1992]; Rodriguez v State of New York, 307 AD2d 657 [3d Dept 2003]; Bogel v State of New York, 175 AD2d 493 [3d Dept 1991]). The decisions to which Claimant cites for the proposition that "courts commonly allow prisoner/claimants to serve by mail" (Chatman affidavit, ¶ 6) – Matter of Dombroski v Bloom, 170 AD2d 805 [3d Dept 1991] and Matter of Dello v Selsky (135 AD2d 994 [3d Dept 1987]) – do not so hold and, in any event, arise from Article 78 proceedings, not Court of Claims actions.

Defendant's motion is GRANTED and Claim No. 111475 is DISMISSED.[1]


March 20, 2006
Albany, New York

HON. RICHARD E. SISE
Judge of the Court of Claims




[1]Claimant is not without remedies. Because he timely and properly served a Notice of Intention, he may file and serve his claim at anytime up to two years after the cause of action accrued (Court of Claims Act § 10[3-b]), or, if necessary, he may move for permission to late file (Court of Claims Act § 10[6] or to have the Notice of Intention deemed the Claim (Court of Claims Act § 10[8]).