This matter comes before the court on defendant’s pre-answer motion to
dismiss the claim herein. It is the contention of the defendant that claimant
failed to effectuate service upon defendant, either by personal service or
service upon the Attorney General by certified mail, return receipt requested,
as required by Court of Claims Act § 11 (a) (i). As a result, the
Attorney General argues that the claimant has failed to obtain personal
jurisdiction or subject matter jurisdiction. Furthermore, the defense argues
that any correction in service at this time would be fruitless, since the claim
would now be time-barred.
This inmate’s claim seeks damages of $400.52 for loss of personal
property. The claim arises out of incidents alleged to have occurred on March
16, 2006 and May 24, 2006 at the Mohawk Correctional Facility.
The Assistant Attorney General’s affirmation submitted in support of this
motion alleges that the claim was received by the Attorney General’s
office on September 20, 2006. The Attorney General received the claim in an
envelope via regular mail, not certified mail, return receipt requested. There
was no personal service of the claim.
The claimant has failed to submit proper opposition to the motion, having only
provided the court with an unsworn letter. The letter acknowledges that
claimant did not serve the claim by certified mail. Claimant states that he
lacked the funds necessary to make the certified mailing and that “it is
why I put in for poor person permission”. However, claimant’s
affidavit, sworn to September 13, 2006 and submitted in behalf of his poor
person application does not support this assertion. To the contrary, that
affidavit specifically sought only a “reduction of filing fee”,
stating further that “I am unable to pay the filing fee necessary to
prosecute this proceeding.” By order dated October 5, 2006, Presiding
Judge Sise granted claimant’s request for a reduction in the filing fee.
Court of Claims Act § 11 (a) (i) specifically provides that:
[t]he claim shall be filed with the clerk of the court; and, except in the case
of a claim for the appropriation by the state of lands, a copy shall be served
upon the attorney general within the times hereinbefore provided for filing with
the clerk of the court either personally or by certified mail, return receipt
The law is well established that the “requirements of ... section 11 of
the Court of Claims Act are jurisdictional in nature and, therefore, must be
strictly construed” (Finnerty v NYS Thruway Authority, 75 NY2d 721,
722, citing with favor, Buckles v State of New York, 221 NY 418, 423 -
424). In Finnerty, where the Attorney General had not been properly
served under CCA § 11, the court found that the failure to properly serve
under Section 11 resulted “not in a failure of personal jurisdiction ...
but in a failure of subject matter jurisdiction which may not be waived.”
(Finnerty v NYS Thruway Authority, 75 NY2d 721, 723). “[T]he use
of ordinary mail to serve the claim upon the Attorney-General is insufficient to
acquire jurisdiction over the State” (Philippe v State of New York,
248 AD2d 827 [3rd Dept 1998]).
Turning to the defendant’s argument that this proceeding is time-barred,
a review of the underlying claim indicates that claimant apparently filed two
separate administrative claims relative to the lost property. His claim before
this court states that the first of the administrative claims was denied by the
Superintendent on May 18, 2006 and that the second administrative claim was
denied on June 19, 2006.
Court of Claims Act § 10 (9) provides that:
[a] claim of any inmate in the custody of the department of correctional
services for recovery of damages for injury to or loss of personal property may
not be filed unless and until the inmate has exhausted the personal property
claims administrative remedy, established for inmates by the department. Such
claim must be filed and served within one hundred twenty days after the date on
which the inmate has exhausted such remedy.
Accepting the facts as alleged in the claim relative to the administrative
claims, the latest date upon which the 120-limitation period would have
commenced running is June 19, 2006. In this instance, since the original
service was improper and the court thus lacked jurisdiction, the matter is now
time-barred, as the 120-limitation period expired weeks ago. Furthermore, the
court has no discretion to allow the late filing of a claim in an inmate
bailment proceeding (Roberts v State of New York, 11 AD3d 1000, 1001 [4th
The defendant’s pre-answer motion to dismiss the claim, pursuant to CPLR
3211 on the grounds that the court lacks both personal and subject matter
jurisdiction as a result of claimant’s failure to effectuate proper or
timely service is granted.