New York State Court of Claims

New York State Court of Claims

LARREA v. THE STATE OF NEW YORK, #2006-037-009, Claim No. 105634, Motion No. M-71497


Synopsis


This bailment claim was dismissed for improper service pursuant to § 11 (a) of the Court of Claims Act. The doctrine of equitable estoppel was inapplicable.

Case Information

UID:
2006-037-009
Claimant(s):
LEONARDO LARREA, 90-A-4203
Claimant short name:
LARREA
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
105634
Motion number(s):
M-71497
Cross-motion number(s):

Judge:
JEREMIAH J. MORIARTY III
Claimant’s attorney:
Leonardo Larrea, Pro Se
Defendant’s attorney:
Hon. Eliot Spitzer
New York State Attorney General
By: Carol A. Cocchiola, Esq.Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
May 5, 2006
City:
Buffalo
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The Defendant moves the Court for an order dismissing the claim for lack of jurisdiction. The following were read and considered with respect to this motion:
1. Notice of motion filed March 31, 2006, and supporting affirmation of Assistant

Attorney General Carol A. Cocchiola dated March 29, 2006, with attached Exhibits A-B.

2. Claimant’s unsworn “reply to affirmation” dated April 17, 2006.[1]


Filed papers: Claim filed February 21, 2002; Answer filed March 18, 2002.


This is an action for loss of personal property which allegedly occurred in July and August of 2001 while the pro se Claimant was incarcerated at Elmira Correctional Facility. The Defendant moves to dismiss the claim alleging that the Court has no jurisdiction as the claim was served on the Attorney General’s Office by “priority mail.” This defense was raised with particularity as an affirmative defense in the Defendant’s answer in compliance with § 11 (c) of the Court of Claims Act.

In support of its motion, Defendant attaches to its motion papers, as part of Exhibit A, a copy of the envelope in which the claim was served on the Attorney General’s Office. The envelope shows a postmark of February 20, 2002, with postage of $3.20. The envelope is marked “priority mail.” It bears no indicia of mailing by certified mail, return receipt requested. The affidavit of service accompanying the claim merely indicates that the claim was to be mailed by the United States Postal Service.

Court of Claims Act § 11 (a) requires that service upon the Attorney General be accomplished by personal service or by certified mail, return receipt requested (see Hodge v State of New York, 213 AD2d 766 [1995], app dismissed 87 NY2d 968 [1996]). The filing and service requirements of the Court of Claims Act are jurisdictional and must be strictly construed (Finnerty v New York State Thruway Auth., 75 NY2d 721 [1989]). The Court is without discretion to waive these requirements. Thus, service by priority mail, which is not one of the methods of service authorized by § 11 (a) of the Court of Claims Act, results in a lack of jurisdiction (Martinez v State of New York, 282 AD2d 580 [2001], lv denied 96 NY2d 720 [2001]).

Claimant does not deny that he improperly served his claim by priority mail, but rather argues that the State should be estopped from raising the improper method of service as a defense because at the time of service he was incarcerated in SHU at Upstate Correctional Facility (Upstate), a newly opened facility, which did not have its law library, correspondence department or inmate accounts office “functioning at capacity.” In addition, Claimant argues that he was constrained to use priority mail envelopes to serve his claim because certified mail receipts were not available from the correspondence department of the newly opened facility.

In certain limited circumstances, upon proper proof, it has been held that the State may be equitably estopped from raising improper service as an affirmative defense if misfeasance or malfeasance on the part of facility officials prevented the Claimant from being able to properly effectuate service (see Rivera v State of New York, 5 AD3d 881 [2004]; Wattley v State of New York, 146 Misc 2d 968 [1990]; but see Rodriguez v State of New York, 307 AD2d 657 [2003] [a lack of subject matter jurisdiction cannot be overlooked or remedied by waiver or estoppel]). The Court need not decide, however, whether estoppel is available to the Claimant as the Court finds that estoppel, even if available, does not apply herein as the Claimant has failed to demonstrate any omission or malfeasance on the part of the facility, failed to demonstrate that the State’s conduct induced justifiable reliance by the Claimant, and failed to demonstrate that Claimant’s position was changed as a result of such reliance (see Williams v State of New York, Ct Cl, May 18, 2000, Fitzpatrick, J., Claim No. None, Motion No. M-61167, UID # 2000-018-013).[2]

Claimant places most of the blame for his failure to properly serve his claim on the fact that Upstate had only recently opened and that its departments were not fully functioning. The Court takes judicial notice, however, of the fact that Upstate actually opened in July of 1999, approximately 2 1/2 years before Claimant attempted service of his claim. There is no reason to believe that its correspondence department, law library or inmate accounts office were not fully functioning in February of 2002 when Claimant attempted service of his claim. In addition, Claimant was apparently able to access his inmate account as he was able to secure $3.20 to pay for the priority mail envelope he used to serve his claim.

Claimant also fails to attach to his reply a copy of a disbursement request form or any other indicia to prove that he requested service by certified mail, return receipt requested. As a result, the Court has no way of confirming that he actually requested proper service or that the prison officials at Upstate somehow improperly handled his request. Claimant’s self-serving allegations of the State’s failure to supply him with the proper form for certified mail is insufficient to overcome the presumption of regularity (Wattley v State of New York, supra at 969-970).


Finally, the necessary element of detrimental reliance is missing from Claimant’s argument that the State should be equitable estopped from raising as a defense improper service of the claim. Assuming, arguendo, that Upstate somehow failed to have the appropriate slips for service by certified mail, return receipt requested, Claimant fails to even allege that anyone at Upstate assured him that his claim would be mailed by certified mail, return receipt requested, as was the situation in Wattley v State of New York, supra, or that he could safely serve his claim by priority mail. Further, when Claimant attempted service in February of 2002, he actually had more than one month left within which to effectuate service.[3] In lieu of waiting the month to see if the facility would acquire the proper forms, if the Claimant had actually requested the forms for certified mail, return receipt requested, or explaining his problem to his inmate counselor or writing to the Superintendent or the officer in charge of the law library, the Claimant apparently took no action to remedy the situation and proceeded instead to serve his claim by priority mail. Under these circumstances, equitable estoppel does not apply (see Williams v State of New York, Ct Cl, August 25, 2003, Hard, J., Claim No. 107314, Motion Nos. M-66805, CM-66867, UID # 2003-032-082).

Because the claim was not served personally or by certified mail, return receipt requested, as required by § 11 (a) of the Court of Claims Act, it is jurisdictionally defective and must be dismissed. Accordingly, it is hereby


ORDERED, that Defendant’s motion to dismiss the claim (M-71497) is granted, and it is further

ORDERED, that Claim No. 105634 be dismissed.

The Clerk of the Court is directed to close the file.



May 5, 2006
Buffalo, New York

HON. JEREMIAH J. MORIARTY III
Judge of the Court of Claims




[1]. On April 20, 2006, approximately one week after Defendant’s motion to dismiss was submitted, Claimant’s “reply to affirmation” was filed with the Court. While Claimant submitted an affidavit of service sworn to before a Notary Public, his reply to affirmation was unsworn. Because his reply was unsworn and untimely, the Court may treat it as a nullity. The Court has, however, read and considered Claimant’s reply papers.
[2]. This and other unreported Court of Claims decisions may be found on the Court’s web site at www.courtofclaims.state.ny.us.
[3]. This is a bailment claim for loss of personal property. Pursuant to § 10 (9) of the Court of Claims Act, Claimant had 120 days from exhaustion of his administrative remedies to serve and file his claim. The first cause of action in the claim is for the loss of a cassette player. According to Exhibit C attached to the claim, Claimant’s administrative remedies expired on January 17, 2002, when he was advised that his appeal was disapproved. Claimant, thus, had until May 17, 2002, to effectuate service and filing of this cause of action. The second cause of action in the claim is for the loss of 19 cassette tapes. According to Exhibit F attached to the claim, Claimant’s administrative remedies expired on December 4, 2001, when he was advised that his appeal was disapproved. Claimant, thus, had until April 3, 2002, to effectuate service and filing of this cause of action.