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
. 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.