New York State Court of Claims

New York State Court of Claims

PENDERGRASS v. THE STATE OF NEW YORK, #2006-033-197, Claim No. 112160, Motion No. M-71730


Synopsis



Case Information

UID:
2006-033-197
Claimant(s):
MICHAEL PENDERGRASS
Claimant short name:
PENDERGRASS
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
112160
Motion number(s):
M-71730
Cross-motion number(s):

Judge:
James J. Lack
Claimant’s attorney:
Michael Pendergrass, Pro Se
Defendant’s attorney:
Eliot Spitzer, New York State Attorney GeneralBy: Kathleen M. Arnold, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
September 27, 2006
City:
Hauppauge
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

This is a claim for the destruction of the property of Michael Pendergrass (hereinafter “claimant”). Claimant was an inmate at Eastern Correctional Facility in Napanoch, New York, at the time this case arose. Claimant alleges the claim accrued on December 20, 2005, the date claimant found out his property was destroyed by defendant’s employees.


Defendant moves the Court to dismiss the claim on several grounds[1]. First, defendant states that claimant served the claim by regular mail instead of authorized service. Next, claimant failed to state a total sum claimed. Lastly, claimant failed to exhaust his administrative remedies pursuant to Court of Claims Act §10(9).

In opposition to defendant’s motion, claimant admits each of these defects but explains why each defect occurred.

The requirements of the Court of Claims Act are jurisdictional in nature and must be strictly construed (Lurie v State of New York, 73 AD2d 1006, aff’d 52 NY2d 849). The purpose of these requirements is to give the State prompt notice of an occurrence and an opportunity to investigate the facts and prepare a defense. It is well settled that if the filing is not timely then the claim is subject to dismissal (Greenspan Bros. v State of New York, 122 AD2d 249). Court of Claims Act §10(3-b) states that the claim shall be served and filed or notice of intention should be served within 90 days of the date of accrual. If a notice of intention is served upon the Attorney General’s office then claimant must serve and file his claim within one year of the date the claim accrued. Court of Claims Act §11(a) states that a copy of the claim shall be served personally or by certified mail, return receipt requested, upon the attorney general. The requirement of personal service or service by certified mail, return receipt requested cannot be satisfied by alternate means of mailing (Hodge v State of New York, 213 AD2d 766).

As previously stated, the requirements of the Court of Claims Act are jurisdictional in nature and must be strictly construed (Lurie v State of New York, 73 AD2d 1006, aff’d 52 NY2d 849) . Lepkowski v State of New York, 1 NY3d 201, 207, notes that the Court of Claims Act "places five specific substantive conditions upon the State's waiver of sovereign immunity by requiring the claim to specify (1) ‘the nature of [the claim]’; (2) ‘the time when’ it arose; (3) the ‘place where’ it arose; (4) ‘the items of damage or injuries claimed to have been sustained’; and (5) ‘the total sum claimed.’" The Court of Appeals in Lepkowski contrasts CPLR 3017(c) which prohibits the pleading of a specific amount in personal injury and wrongful death actions. Lepkowski, which concerned unpaid overtime of state employees, dismissed the claims for, among other things, failing to plead the amount claimed as to each of the claimants.

Therefore, the Court finds that the failure by claimant to include the ad damnum clause is jurisdictionally defective. The Court finds no reason to reach the argument pursuant to Court of Claims Act §10(9).

Based on the foregoing, the Court concludes that the claim fails to satisfy the pleading and service requirements of Court of Claims Act §11. The defendant’s motion is granted and the claim is dismissed. The Clerk of the Court is directed to close the file.



September 27, 2006
Hauppauge, New York

HON. JAMES J. LACK
Judge of the Court of Claims




[1].The following papers have been read and considered on defendant’s motion: Notice of Motion to Dismiss dated May 8, 2006 and filed May 8, 2006; Affirmation in Support of Motion to Dismiss of Kathleen M. Arnold, Esq. with annexed Exhibits A-B dated May 8, 2006 and filed May 8, 2006; Notice of Motion Dismissing Claims By The Assistant Attorney General of Michael Pendergrass dated May 8, 2006 and filed May 30, 2006; Affidavit in Support of Motion Dismissing Claim by the Assistant Attorney General of Michael Pendergrass dated May 24, 2006 and filed May 30, 2006.