New York State Court of Claims

New York State Court of Claims
DAVIDSON v. THE STATE OF NEW YORK, # 2006-031-019, Claim No. 111164, Motion Nos. M-70642, M-70545, Cross-Motion No. CM-70625


Defects in filing and service were caused by Defendant's improper refusal to notarize and mail claim as requested by Claimant, and required by 7 NYCRR 721.3. The interests of justice require that Defendant be estopped from asserting jurisdictional defense relating to improper service or filing.

Case information

UID: 2006-031-019
Claimant short name: DAVIDSON
Footnote (claimant name) :
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 111164
Motion number(s): M-70642, M-70545
Cross-motion number(s): CM-70625
Claimant's attorney: RONALD DAVIDSON, PRO SE
Defendant's attorney: HON. ELIOT SPITZER
New York State Attorney General
Assistant Attorney General
Third-party defendant's attorney:
Signature date: April 5, 2006
City: Rochester
Official citation:
Appellate results: 43 AD3d 1311
See also (multicaptioned case)


The following papers, numbered 1 to 14, were read on motions by Claimant for permission to file a claim "nunc pro tunc" and to "determine proper service" and on cross-motion by Defendant for dismissal of the claim:

1) Claimant's Notice of Motion (M-70545), filed July 28, 2005;

2) Claimant's Affidavit, sworn to July 22, 2005, with attached exhibit;

3) Defendant's Notice of Cross Motion (CM-70625), filed August 29, 2005;

4) Affirmation of Kathleen M. Arnold, Esq., dated August 29, 2005;

5) Affidavit of Janet Barringer, sworn to August 25, 2005, with attached exhibit;

6) Claimant's Notice of Motion (M-70642), filed September 2, 2005;

7) Claimant's Affidavit, sworn to August 9, 2005, with attached exhibits;

8) Affirmation of Kathleen M. Arnold, Esq., dated November 14, 2005, with attached exhibits;

9) Claimant's unsworn "Affidavit," dated December 1, 2005;

10) Correspondence from Kathleen M. Arnold, Esq., dated October 28, 2005;

11) Correspondence from Claimant, dated November 3, 2005;

12) Correspondence from Kathleen M. Arnold, dated December 12, 2005;

13) Correspondence from Claimant dated December 19, 2005.

14) Filed documents: Claim.


In his underlying claim, Mr. Davidson, an inmate in the care and custody of the Department of Correctional Services ("DOCS") alleges a cause of action for lost property. The claim itself is rather simple and requests reimbursement for Claimant's lost watch, some articles of clothing and a legal transcript. The procedural posture of this claim is anything but simple. The parties do agree that the 120 days within which Claimant could file a timely claim ended on July 19, 2005 for the watch and the blanket (administrative remedies having been exhausted on March 21, 2005) and on July 21, 2005 for the legal transcript (exhaustion of remedies having occurred on March 23, 2005).

On July 12, 2005, Claimant tried, unsuccessfully, to verify his claim before a notary public. Knowing that the 120 day period within which he could timely file and serve his claim was rapidly expiring, Claimant filed the claim, writing in where the jurat was to have been that Defendant had refused to grant him access to a notary public. The claim was filed with the Clerk of the Court of Claims on July 20, 2005. On July 16, 2005, Claimant delivered his claim to the appropriate prison authority and requested that the claim (apparently still unverified at this point) be served by certified mail return receipt requested ("CMRRR") upon the office of the Attorney General. On July 19, 2005, Claimant was finally able to obtain the services of a notary public and properly verify his claim. The claim delivered to prison authorities on July 16, 2005 was returned to Claimant on July 22, 2005. He was informed that it was not sent to the Attorney General's Office as he requested because he did not supply sufficient proof that the document was required to be served by certified mail, return receipt requested.

On July 28, 2005, Claimant filed motion M-70545 requesting that the Court permit him to file the July 19, properly verified claim, nunc pro tunc, in place of the improperly verified claim filed on July 20, 2005. Defendant has never been served with the claim verified or otherwise. In response to Claimant's motion, Defendant filed cross motion CM-70625 requesting that the claim be dismissed as it has never been served on Defendant. Thereafter, Claimant filed motion M-70642 seeking a declaration from the Court that both service and filing of the claim were proper in light of the circumstances. This course of events presents me with an unpleasant combination of issues that defy application of any cut and dry rule of law.

Initially, I note my awareness of the existence of case law addressing whether or not the alleged defects in service relate to personal jurisdiction and may be waived, or to subject matter jurisdiction and may not be waived. Specifically, in Finnerty v New York State Thruway Auth. (75 NY2d 721), the Court of Appeals determined that "the requirement in section 11 [of the Court of Claims Act] that the Attorney-General be served with a copy of the claim was not satisfied, resulting not in a failure of personal jurisdiction, as the Appellate Division writing suggests, but in a failure of subject matter jurisdiction which may not be waived" (75 NY2d at 723). Subsequently, in Wattley v State of New York (146 Misc 2d 968), Judge Rossetti of the Court of Claims determined in a similar factual situation that "[p]lainly it would be a manifest injustice in these particular circumstances to penalize claimant for the sins of negligence or intent committed by State officers or employees" (146 Misc 2d at 970). Judge Rossetti determined that "the duty [Defendant] breached is of sufficient importance and relevance to a prisoner's right to sue to warrant the application of estoppel. (See, 57 NY Jur 2d, op. cit.)" (146 Misc 2d at 970).

On this issue, the Appellate Division, Third Department, has apparently given contradictory signals; determining in Rodriguez v State of New York (307 AD2d 657), a case involving, as here, Department of Correctional Services alleged failure to send a claim CMRRR as directed by the inmate. The court, citing Finnerty, determined that "[a] lack of subject matter jurisdiction is a defect that cannot be overlooked or remedied by either waiver or estoppel" (307 AD2d at 657). Subsequently, however, in Rivera v State of New York (5 AD3d 881), that same Court, citing Wattley, determined that "[u]nder certain circumstances, misfeasance or malfeasance on the part of facility officials may be a proper excuse for failure to timely file thus warranting estoppel" (5 AD3d at 881). Recently, in Brodie v State of New York (Ct Cl, February 15, 2006 [Claim No. 107265, Motion No. M-70666], Hard, J., UID #2006-032-008), Judge Hard of the Court of Claims, citing both Finnerty and Rodriguez, determined that "[a] lack of subject matter jurisdiction cannot be overlooked or remedied by either waiver or estoppel."

In Finnerty, Rodriguez and Brodie, each court sought to ameliorate the apparent harshness of its ruling by pointing out that, although the claim had to be dismissed for lack of subject matter jurisdiction, the claimant in each case was free to either file his claim again, or seek permission to file a late claim (at which time the claimant could presumably set forth in support of his application Defendant's failure to properly handle the inmate's mailing requests). Here, however, the statute of limitations has run, so it is too late for Mr. Davidson to file another claim. Also, because the claim is for lost property, late claim relief is not available to Mr. Davidson (see e.g. Roberts v State of New York, 11 AD3d 1000). Accordingly, if the claim were to be dismissed, Defendant's misfeasance would have prevented complete access to the courts relating to this claim. I find that the interests of justice cannot permit such a result.

Accordingly, I find that the defects in filing and service (lack of proper notarization, and the failure to serve the claim upon Defendant) were due to Defendant's improper handling of Mr. Davidson's specific direction. I note in this regard that Mr. Davidson has submitted uncontradicted documentary evidence that his request for service upon Defendant by CMRRR was improperly denied in violation of 7 NYCRR 721.3 which by its own terms was enacted to "ensure that indigent inmates maintain their right of access to the courts." 7 NYCRR 721.3(a)(3)(vii) provides that "[n]o request for a legal mail advance will be denied by facility staff without prior consultation with the department's office of counsel. Any question whether a particular item qualifies as 'legal mail,' or whether an advance is allowable should be directed to such office." Defendant's argument that Claimant's failure to leave "time for trouble in the processing of his request" (Arnold November 14, 2005 affirmation, par. 11) would be persuasive but for Defendant's failure to follow its own policy and procedure (see Rivera v State of New York, Ct Cl, October 18, 2002 [Claim No. 105785, Motion No. M-65806], Lebous, J., UID #2002-019-579).

For the reasons set forth above, I find that the interests of justice require that Claimant be permitted to pursue his claim on the merits. Accordingly, it is hereby

ORDERED, that Claimant's motions are granted to the extent that he shall be permitted to serve his claim upon the Attorney General's office. Claimant is directed to serve a claim identical to the claim submitted in support of his motion, and to do so in conformance with the requirements of CCA 11 within sixty (60) days after this decision and order is filed. And it is further

ORDERED, that providing service is made as described in the above decretal paragraph, Defendant is hereby estopped from asserting any defense relating to the timeliness of such service or the adequacy of the verification of the filed claim. Each of Claimant's motions are, in all other respects denied. And it is further

ORDERED, that Defendant's cross-motion is denied.

April 5, 2006

Rochester, New York


Judge of the Court of Claims