New York State Court of Claims

New York State Court of Claims

BLACKSHEAR v. THE STATE OF NEW YORK, #2006-042-504, Claim No. 112775, Motion No. M-72426


Defendant’s motion for a pre-answer motion to dismiss claim is granted.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant’s attorney:
Defendant’s attorney:
Attorney General of the State of New York
By: G. LAWRENCE DILLON, ESQ., Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
January 9, 2007

Official citation:

Appellate results:

See also (multicaptioned case)


Defendant has brought this motion seeking an order to dismiss the claim 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. The following papers were considered by the court:
  1. Notice of Motion, filed October 20, 2006
  2. Affirmation of G. Lawrence Dillon, Esq., dated October 20, 2006
  3. Exhibits A - B, annexed to the moving papers
  4. Letter of claimant, Kevin D. Blackshear, dated November 2, 2006

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 requested....

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 Dept 2004]).

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.

January 9, 2007
Utica, New York

Judge of the Court of Claims