New York State Court of Claims

New York State Court of Claims

MARTIN v. THE STATE OF NEW YORK, #2007-015-150, Claim No. 112703, Motion No. M-72376


Synopsis


Bailment claim was dismissed for improper service. Notice of intention does not extend the time to file a claim under Court of Claims Act § 10 (9) nor is late claim relief available.

Case Information

UID:
2007-015-150
Claimant(s):
VINCENT MARTIN
1 1.The caption is amended sua sponte to reflect the only properly named defendant.
Claimant short name:
MARTIN
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :
The caption is amended sua sponte to reflect the only properly named defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
112703
Motion number(s):
M-72376
Cross-motion number(s):

Judge:
FRANCIS T. COLLINS
Claimant’s attorney:
Vincent Martin, Pro Se
Defendant’s attorney:
Honorable Andrew M. Cuomo, Attorney General
By: Kathleen M. Arnold, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
January 24, 2007
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Defendant brings this pre-answer motion to dismiss the claim for lack of jurisdiction upon the claimant's alleged failure to properly serve the claim. The claim filed on August 30, 2006 alleges that certain of claimant's property was lost due to the negligence of the State during his transfer from Washington Correctional Facility to Great Meadow Correctional Facility beginning on March 8, 2006. The claim alleges damages in the amount of $5,000.00 and indicates the general nature of the items lost.

In support of its dismissal motion the defendant established that the claim was served upon the Attorney General by ordinary mail on August 30, 2006. The envelope submitted as an exhibit with the defendant's motion demonstrates postage in the amount of $ .39 and the affidavit of service does not state that the claim was served in any manner other than by ordinary mail. In opposition to the motion the claimant admits that service of the claim was improper and requests that this Court exercise its discretion and overlook this error because the claimant is a layman unfamiliar with the law.

Court of Claims Act§ 10 (9) provides:
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.

Court of Claims Act § 11(a) (i) requires that a claim be filed with the clerk of the court and that “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...." or by facsimile transmission or electronic means if authorized. Service of the claim by ordinary mail was therefore improper (see Govan v State of New York, 301 AD2d 757). The law is clear that the State’s waiver of immunity under Section 8 of the Court of Claims Act is contingent upon claimant’s compliance with specific conditions set forth in article II of the Court of Claims Act (see Lepkowski v State of New York, 1 NY3d 201, 206). “Because suits against the State are allowed only by the State’s waiver of sovereign immunity and in derogation of the common law, statutory requirements conditioning suit must be strictly construed” (Long v State of New York, 7 NY3d 269, 275 quoting Lichtenstein v State of New York, 93 NY2d 911, 913 [other citations omitted]).

As a result, absent a waiver, service of a claim upon the attorney general by regular mail is insufficient to acquire jurisdiction over the State. Accordingly, the defendant's motion to dismiss for improper service is granted.`

The question arises whether or not a properly served claim would now be time-barred. As related earlier herein, Court of Claims Act § 10(9) requires that an inmate in the custody of the Department of Correctional Services exhaust his administrative remedy prior to filing a claim for the loss of personal property. Thereafter, a claim must be filed and served within one hundred twenty days following exhaustion of the administrative remedy. It has been held that such a claim accrues upon receipt of the administrative determination (see Blanche v State of New York, 17 AD3d 1069). Among the correspondence submitted by the claimant in opposition to the motion was an Inmate Claim Form which indicates that the claimant's administrative claim was "approved" in the amount of $107.50 on June 7, 2006, and that this amount was "approved" after an "appeal review" on July 12, 2006. Thus, it would appear that time to file a claim concerning the loss of claimant's property expired 120 days following receipt of the decision dated July 12, 2006 and service of a claim at this point would therefore be untimely. Claimant's alleged service of a notice of intention to file a claim on April 20, 2006 does not extend the period in which to file and serve a claim under Court of Claims Act § 10(9). Unlike Court of Claims Act § 10(3), no provision is made in § 10(9) for serving a notice of intention to file a claim. As a result, the time within which the claim must be filed and served is not extended by the service of a notice of intention (see Gloster v State of New York, 6 Misc 3d 1001[A][Ct Cl 2002]).

Lastly, to the extent the claimant's papers submitted in opposition could possibly be construed as a request to late file his claim, such relief is unavailable for a claim filed under Court of Claims Act § 10(9) (Roberts v State of New York, 11 AD3d 1000 [2004]).

Defendant's motion to dismiss for lack of jurisdiction based upon improper service of the claim is granted and the claim is dismissed. In light of this determination, it is unnecessary to address defendant's alternate ground for dismissal.



January 24, 2007
Saratoga Springs, New York

HON. FRANCIS T. COLLINS
Judge of the Court of Claims


The Court considered the following papers:
  1. Notice of motion dated October 6, 2006;
  2. Affirmation of Kathleen M. Arnold dated October 6, 2006 with exhibit;
  3. "Notice of addendum" of Vincent Martin filed October 27, 2006 with exhibits.