New York State Court of Claims

New York State Court of Claims

MOORE v. THE STATE OF NEW YORK, #2006-028-587, Claim No. 107426, Motion No. M-71882


A claim that was timely filed with the Court but untimely served on the Attorney General is dismissed. Claimant’s submission of a certified mail return receipt (“green card”) cannot prove the nature of the document received by the Attorney General.

Case Information

1 1.The caption has been amended to reflect the only proper defendant.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
The caption has been amended to reflect the only proper defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant’s attorney:
Defendant’s attorney:
BY: Kathleen M. Arnold, Esq.Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
October 3, 2006

Official citation:

Appellate results:

See also (multicaptioned case)


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

1. Notice of Motion and Supporting Affirmation of Kathleen M. Arnold, AAG, with annexed Exhibits

2. Affidavit in Opposition of Nathaniel Moore, pro se, with annexed Exhibit

Filed papers: Claim; Answer

This claim arose at Coxsackie Correctional Facility on October 23, 2002. The substantive portion of the Claim reads, in full, as follows:
On 10/23/02 Mrs. Sutherland, KRS, inform me that my glasses were sent out for repair. Then said lab said that they could not be fixed and that a new frame was necessary
According to documentation provided by defense counsel (Arnold Affirmation, Exhibit B), Claimant filed Inmate Claim Form seeking the sum of $270.00 for glasses frames that were not returned to him.

In its Answer, Defendant raised, as its third affirmative defense, that the Claim was not served within 120 days after the date on which the inmate exhausted the administrative remedies for personal property claims, as required by the Court of Claims Act §10(9). The defense was raised with sufficient particularity to satisfy the pleading requirements of Court of Claims Act §11(c). Defendant now moves for an order dismissing the claim on ground, inter alia, that it was untimely served.

Claimant’s administrative remedies were exhausted on January 16, 2003, when the initial disapproval of Claimant’s inmate claim was affirmed on appeal (Arnold Affirmation, Exhibit B). The Claim was timely filed with the Court on March 4, 2003, but a copy of the Claim was not served on the Office of the Attorney General until June 23, 2003, more than 120 days after the date that Claimant’s administrative remedies were exhausted. The received-stamped copy of the Claim and a photocopy of the envelope in which it was received (Arnold Affirmation, Exhibit A) provide evidence of the date of service.

Claimant opposes the motion, contending that the Claim was timely served and referring, as evidence of this, to the copy of the certified mail receipt attached to his affidavit. This exhibit establishes that a document was received by the Office of the Attorney General on April 28, 2003. It cannot, of course, establish that the document was a copy of this particular Claim.

Copies of correspondence contained in the Court’s files shed some light on the sequence of events leading to institution of this action. After the Claim was filed with the Court, the Chief Clerk sent to Claimant an acknowledgment letter, dated March 18, 2003, which contained the following direction: “If you have not yet filed proof of service of the claim upon the defendant, please do so immediately.” Claimant replied to the Court, stating that he did not understand the direction about proof of service of the Claim on Defendant. He asked the Court to provide a copy of proof of service so that he could give it to the Defendant. Claimant wrote again to the same effect on March 26 and April 2, 2003. The Chief Clerk then informed Claimant that he was to provide the proof of service and that it could be in the form of an affidavit of personal service, a copy of the green certified mail card, or a copy of the claim stamped “Received” by the Attorney General.

On April 22, 2003, Claimant wrote to the Court stating that he had not previously sent the claim “certified receipt” but to “see that he get, it this time Im [sic] sending it certified receipt.” He further indicated that he was waiting for the receipt to be sent back to him so that he could provide it to the Court. The next correspondence, of which the Court received a copy, was a letter dated April 30, 2003 from Assistant Attorney General Eileen E. Bryant to Claimant, which read as follows:
Dear Mr. Moore:

I am in receipt of your “Affidavit of Service” dated April 19, 2003, wherein you attest to having mailed an “exact copy of the enclosed papers identified as claim No. 107426 . . .”

Please be advised that no claim was enclosed with your affidavit of service. Moreover, this office has no record of service of any claim from you.
A subsequent letter from AAG Bryant, dated May 20, 2003 and written in response to further correspondence from Claimant, again advised him that “this office has no record of service of any claim from you.”

On June 5, 2003, Claimant wrote the Court, requesting a copy of his claim. “I need a copy because the Attorney General have not receive[d] the one I sent.” A copy of the claim was forwarded to Claimant by the Chief Clerk. It is apparently this copy of the Claim that was received by the Attorney General and is included in the Arnold Affirmation as Exhibit A.

From the documents and copies of correspondence before it, the Court concludes that the document Claimant sent to the Attorney General, which was received on April 28, 2003, was not a copy of the Claim but, rather, the “Affidavit of Service” referenced in Ms. Bryant’s first letter. It was not until June 23, 2003 that the Attorney General was served with a copy of the Claim, and that date is more than 120 days after the date on which Claimant exhausted his administrative remedies. Consequently, it must be concluded that the Claim was untimely served.

Defendant’s motion is GRANTED and Claim No. 107426 is dismissed.

October 3, 2006
Albany, New York

Judge of the Court of Claims