New York State Court of Claims

New York State Court of Claims

PIEROTTI v. THE STATE OF NEW YORK, #2007-028-538, Claim No. 107819, Motion No. M-72384


Defendant is equitably estopped from challenging improper service of a prisoner’s claim.

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:
BY: Dennis M. Acton, Esq.Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
March 30, 2007

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers were read on Defendant’s motion for an order of dismissal:

1. Notice of Motion and Supporting Affirmation of Dennis M. Acton, AAG, with annexed Exhibits; and

2. Affidavit in Opposition of John Pierotti, pro se, with annexed Exhibits.

Filed papers: Claim; Answer

By this action, which was commenced in 2003, Claimant seeks to recover money damages for injuries he suffered at Clinton Correctional Facility from January 2001 to June 2002. Claimant alleges that during this time period, prison officials failed to provide a living situation consistent with his needs resulting from both physical and mental disabilities; he states that he is legally deaf and walks with crutches. As a result, Claimant asserts, he fell over 100 times, injuring himself on a number of occasions; he was unable to carry a meal tray while using crutches and thus missed meals; and he was unable to hear the bells or public address system announcements regulating everyday life in the prison: meals, church, recreation time and the like. In its answer, Defendant State of New York raised, as its sixth affirmative defense, the Court’s lack of jurisdiction over the claim because it was not served on the Attorney General by certified mail, return receipt requested (CMRRR), as required by section 11(a) of the Court of Claims Act. Defendant has now moved to dismiss the action on that ground. In support of the motion, counsel has submitted a photocopy of the envelope in which the claim arrived (Acton Affirmation, Exhibit A [last page]).[1] This envelope shows that the postage paid was $2.96, and there is no form affixed to the envelope indicating that CMRRR service was used. Typed on the envelope, however, are the words “Legal Mail Certified.”

In opposition to the motion, Claimant has submitted the “green card” receipt and his inmate account disbursement form related to the Notice of Intention that was served in June 2002 (Pierotti Affidavit, Exhibit A). This establishes that, as defense counsel concedes, CMRRR service was used in connection with that document. The cost of such postage was $3.94. Claimant’s second exhibit (Exhibit B) is another inmate account advanced form showing that on May 29, 2003, the amount of $5.92 was withdrawn from Claimant’s account to pay for “Certified Mail and Return Receipt” service for two documents, one being sent to the Attorney General and the second being sent to this court. A handwritten notation on this form indicates that the postage was “2 @ 2.96.” The total sum withdrawn ($5.92) was written on the form by the same person, in handwriting different than that used to complete the form and provide the addresses. In a notarized statement submitted along with this disbursement form, Claimant states:
The below receipt is true and correct, showing that I requested, and believe it was done, that my Claim be sent to the Attorney General’s Office by Certified Mail, Return Receipt Requested. To the best of my knowledge this was done, although the facility has not provided me with any other receipts. As I must rely upon the facility to send this mail as I requested, if they have not done so upon the clear instructions on the receipt below, then the State is responsible for the alleged error claimed in this matter, and proper service has been made.
There has been no further submission from Defendant to suggest or prove that the inmate disbursement form was not as provided by Claimant (with the exception of the postage amounts written in), and Claimant’s final exhibit (Exhibit C) shows that there was no other postage deducted from Claimant’s inmate account during the first part of June 2003. The disbursement request, therefore, inevitably related to the claim that was served on the Attorney General on June 2, 2003.

If established by proper proof, the “misfeasance or malfeasance on the part of facility officials” may result in equitable estoppel, preventing the State from seeking dismissal of an improperly-served or untimely-served Claim (Rivera v State of New York, 5 AD3d 881 [3d Dept 2004]; Wattley v State of New York, 146 Misc 2d 968 [Ct Cl 1990]; see discussion in Davidson v State of New York, UID # 2006-031-019, Claim No. 111164, Motion Nos. M-70642, M-70545, CM-70625 [Ct Cl April 5, 2006], Minarik, J.). Here, Claimant has established that he specifically requested CMRRR service be used to send a copy of his claim to the Attorney General. There is nothing to suggest that he was ever informed his request had not been honored, so there was no reason for him to have taken any additional action to make sure that proper service had been effected.[2] In the situation presented here, the Court holds that the State failed in its duty to carry out Claimant’s instruction regarding the manner in which his Claim should be served on Defendant, and consequently it is equitably estopped from raising the defense of improper service.

Counsel for Defendant also questions the timeliness of the claim, contending that the action would be untimely except for those events occurring within 90 days before the Notice of Intention was served (i.e., events occurring between March 4, 2002 and June 2, 2002). In general, a claim accrues when damages are reasonably ascertainable (Augat v State of New York, 244 AD2d 835 [3d Dept 1997], lv denied 91 NY2d 814 [1998]. When the alleged wrong is a continuing one, such as a continuing trespass or nuisance, the point at which damages become ascertainable can be problematic. Certainly, however, they become ascertainable when the complained of actions cease. Claimant’s allegations complain of a continuing course of conduct on the part of prison officials at Clinton Correctional Facility that extended from January 2001 to June 2002, at which point the Notice of Intention was served. While it remains for Claimant to prove that such conduct occurred during the entire time period, if he is able to do so, the claim - in its entirety - would be timely.

The Court finds no merit in Defendant’s argument that the claim is “wholly deficient due to its lack of facts supporting defendant’s negligence” (Acton Affirmation ¶ 7). While the pro se Claim may be inartfully drafted, it is possible to glean from it specific allegations of a course of conduct that, if proven, would entitle Claimant to recover for any resulting harm.

Defendant’s motion is denied.

March 30, 2007
Albany, New York

Judge of the Court of Claims

[1]. Defendant’s affirmation incorrectly refers to Exhibit A as containing a copy of the notice of intention that was properly served in June 2002 (Acton Affirmation, ¶ 4). The documents actually contained in Exhibit A, however, are the Claim which was served in June 2003, along with the envelope in which it arrived in June 2003.
[2]. While it would have been prudent for Claimant to challenge the affirmative defense contained in Defendant’s answer at the time it was raised, there is no affirmative obligation that he do so. A party against whom an affirmative defense had been raised may move for a more particular statement if the allegations are vague or ambiguous (CPLR 3024 [a]); serve a demand for a bill of particulars with respect to the defense (CPLR 3041); move to dismiss or strike a defense on the ground that it “is not stated or has no merit” (CPLR 3211 [b]); or simply do nothing in the belief that the opposing party will not be able to prove the defense.