New York State Court of Claims

New York State Court of Claims

PALMER v. THE STATE OF NEW YORK, #2007-030-015, Claim No. 109675


Synopsis


Defendant’s motion to dismiss made at trial granted. Inmate claimant proceeding pro se did not serve her likely viable claim personally, or by certified mail, return receipt requested, as required, and defense properly included in answer to alert claimant of this basic infirmity to prosecuting her claim. Doctrine of equitable estoppel will not apply. Only claimant’s testimony to the effect that she asked that the mail be sent by the appropriate means, that she provided the proper funds, and that mail room personnel did not send the mail in the manner requested, has been offered. No copies of any disbursement request forms, or indication on the letter itself of her intentions - the words “legal mail” written on the outside of the envelope do not necessarily mean that the item should be sent certified mail, return receipt requested - or a copy of her inmate account statement showing a withdrawal for the correct amount, have been offered to substantiate her testimony.

Case Information

UID:
2007-030-015
Claimant(s):
ANITA PALMER
Claimant short name:
PALMER
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
109675
Motion number(s):

Cross-motion number(s):

Judge:
THOMAS H. SCUCCIMARRA
Claimant’s attorney:
ANITA PALMER, PRO SE
Defendant’s attorney:
HON. ANDREW M. CUOMO, NEW YORK STATE ATTORNEY GENERAL
BY: ELYSE J. ANGELICO, ASSISTANT ATTORNEY GENERAL
Third-party defendant’s attorney:

Signature date:
May 24, 2007
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Anita Palmer alleges in her claim that while she was incarcerated at Taconic Correctional Facility defendant’s agents wrongfully subjected her to exposure to potentially contaminated fecal matter and blood, when she was instructed to clean a dorm bathroom without being provided with proper training or gloves for the task, in contravention of facility regulations. Trial on the matter was held on March 20, 2007.

On the trial date, Defendant moved to dismiss the claim based on a lack of jurisdiction, in that the Attorney General’s Office was served with the claim by regular mail on July 28, 2004, but was not served personally or by certified mail, return receipt requested as required. See Court of Claims Act §§10 and 11. In its answer, served on September 3, 2004, the Defendant included as an Eighth affirmative defense the failure to serve the claim as required, and the resulting lack of jurisdiction. In support of this contention, a copy of the claim stamped as received by the Attorney General’s Office on July 28, 2004, and containing the envelope in which it was mailed, was submitted to the court, and shows that only regular mail service was paid for, with no tell-tale green receipt markings. [Exhibit A]. An affidavit of service claimant attached to the claim indicates that she was mailing it by certified mail. [See id.].

Claimant said that as an incarcerated person, she has to rely on the personnel in the facility to follow her mailing instructions. If the claim was sent by regular mail, she argued, it was because the facility failed to complete her request that it be mailed by certified mail, return receipt requested. She insisted that she had paid for certified mail, return receipt requested service, but did not have the disbursement receipts from her inmate account to show the monies paid for same. This was because, she explained, the incident occurred shortly before her release from prison - indeed any documentation of both the incident giving rise to the claim and of what she mailed was no longer in her possession[1], and any witnesses, such as “the chaplain” were in prison. Prior to her release, there was an investigation of a matter unrelated to hers, and “they came around and they collected everybody’s mail for investigation - every piece of mail we owned - and I was released and never got my mail back, I’m sure it’s still there at Taconic Correctional Facility.”[2]

The filing and service requirements contained in Court of Claims Act §§10 and 11 are jurisdictional in nature and must be strictly construed. Finnerty v New York State Thruway Auth., 75 NY2d 721, 722-723 (1989). Indeed, the statute provides in pertinent part “. . . [n]o judgment shall be granted in favor of any claimant unless such claimant shall have complied with the provisions of this section applicable to his claim . . . ” Court of Claims Act §10.

Court of Claims Act §11(a)(i) provides that “. . . a copy [of the claim] shall be served personally or by certified mail, return receipt requested, upon the attorney general . . .” within the time prescribed in Court of Claims Act §10[3]; and service is complete when it is received in the Attorney General’s Office. Service upon the Attorney General by ordinary mail is generally insufficient to acquire jurisdiction over the State, unless the State has failed to properly plead jurisdictional defenses or raise them by motion. Court of Claims Act §11(c)[4]; Govan v State of New York, 301 AD2d 757 (3d Dept 2003), lv denied 99 NY2d 510 (2003); Turley v State of New York, 279 AD2d 819 (3d Dept 2001), lv denied 96 NY2d 708 (2001), rearg denied 96 NY2d 855 (2001); Martinez v State of New York, 282 AD2d 580 (2d Dept 2001), lv denied 96 NY2d 720 (2001); Negron v State of New York, 257 AD2d 652 (2d Dept 1999).

In this case, a timely served claim - the accrual date is July 1, 2004 - was responded to with a timely served answer containing the jurisdictional defense on September 3, 2004. Thus the defense has been properly pleaded, and alerted claimant to a basic infirmity to prosecuting her claim.

Accordingly, the court is constrained to grant the motion, and dismiss what would otherwise have presented as a viable claim, unless some other precept, such as the doctrine of equitable estoppel, is applied. See Wattley v State of New York, 146 Misc 2d 968 (Ct Cl 1990)[5]; cf. Rivera v State of New York, 5 AD3d 881 (3d Dept 2004)[6]; Folks v State of New York, UID # 2006-009-077, Claim No. 112365, Motion No. M-71955 (December 19, 2006, Midey, J.)[7]; see also Francis v State of New York,155 Misc 2d 1006 (Ct Cl 1992).[8]

Unfortunately, only claimant’s testimony to the effect that she asked that the mail be sent by the appropriate means, provided the proper funds, and that mail room personnel did not send the mail in the manner requested, has been offered. No copies of any disbursement request forms, or indication on the letter itself of her intentions - the words “legal mail” written on the outside of the envelope [see Exhibit A] do not necessarily mean that the item should be sent certified mail, return receipt requested - or a copy of her inmate account statement showing a withdrawal for the correct amount, have been offered to substantiate her testimony. See. e.g. Wattley v State of New York, supra at 970.[9] Without more, the court cannot apply the doctrine of equitable estoppel to preclude the properly pled and raised jurisdictional defense, and the claim herein must be dismissed because the court lacks personal jurisdiction over the defendant.

The court notes that assuming a date of accrual of July 1, 20041[0], and further assuming that the claim asserts a cause of action sounding in negligence, the time within which a person suing other than in the Court of Claims could bring a lawsuit is three (3) years from accrual [see Civil Practice Law and Rules §214] thus the time within which to bring application for permission to serve and file a late claim has not yet expired, but will very soon. See Court of Claims Act §10(6).

Based on the foregoing, Defendant’s motion to dismiss is hereby granted, and Claim number 109675 is hereby dismissed.

Let judgment be entered accordingly.

May 24, 2007
White Plains, New York

HON. THOMAS H. SCUCCIMARRA
Judge of the Court of Claims




[1]. Somewhat belying Ms. Palmer’s indication that all documentation was lost to her is the offer of the misbehavior report [Exhibit 1] - albeit a wrinkled copy - as evidence for her substantive claim. For the most part Ms. Palmer impressed the court as a credible witness, if a little inclined toward excitability in the face of the frustration of prosecuting a claim pro se.
[2]. All quotations are to trial notes or audio recordings unless otherwise indicated.
[3]. Within ninety (90) days of its accrual.
[4]. “Any objection or defense based upon failure to comply with (i) the time limitations contained in section ten of this act, (ii) the manner of service requirements set forth in subdivision a of this section, or (iii) with the verification requirements as set forth in subdivision b of this section and rule three thousand twenty-two of the civil practice law and rules is waived unless raised, with particularity, either by a motion to dismiss made before service of the responsive pleading is required or in the responsive pleading, and if so waived the court shall not dismiss the claim for such failure.”
[5]. Court denied defendant’s motion to dismiss for improper service. Claimant said he had attached the disbursement form for certified mail to his claim, but it apparently fell off, and additionally presented evidence that his inmate account was debited for the cost of certified mail, return receipt requested service. “Absent sufficient rebuttal (see Cole v State of New York, 64 AD2d 1023, 1024), we find the circumstances call for the invocation of equitable estoppel to prevent defendant from being rewarded for its own apparent breach of duty . . . (citation omitted).” Wattley v State of New York, supra, at 969. Additionally, the facility had an additional obstacle to getting proof of service in place, in that an inmate would only receive a receipt indicating that the special mailing request had been approved and processed, without any initial documentation that the mail was delivered to the facility mailroom.

[6]. Claimant argued that he was entitled to invoke the doctrine of equitable estoppel because of the facility mailroom’s delay in processing his legal mail which resulted in the notice of intention being untimely filed. There is no mention of the manner of service. The appellate division determined that “. . . claimant . . . failed to demonstrate that the mailroom delay arose out of any omissions or malfeasance on the part of the facility’s mailroom personnel
. . . [A] review of the record reveals that the mailroom personnel followed proper procedures in processing claimant’s legal mail.”
[7].Court declined to invoke equitable estoppel saying: “although the Court finds that claimant made an initial request to facility officials to have his claim served by certified mail, return receipt requested, he has submitted no evidence whatsoever to establish that he pursued his request, or submitted any further information to facility officials when his initial request was denied for lack of supporting information.” Interestingly, claimant demonstrated that he had timely asked the mailroom to send the claim certified mail, return receipt requested, and that his request was denied with a note saying “Inmate must show proof that these envelopes are court mandated to be there by a certain date.”
[8]. Court held that the State was estopped to assert defense that notice of intention not served properly, when the process server attempting personal service utilized directory at Attorney General’s Office indicating a room set aside for service of process, and clerk at desk when asked whether authorized to accept service of what was clearly marked as a Notice of Intention to File a Claim indicated he could accept document and stamped process server’ s receipt.
[9].“While the mere allegation of a State failure to act is not sufficient to overcome the presumption of regularity (see e.g. Richardson, Evidence §72 [Prince 10th ed]), at bar we have the documentary equivalent of an admission by defendant that claimant’s mailing request was received and charged for, but not acted on . . . (citation omitted). Claimant did what he was supposed to do and all that defendant allowed . . . [thereby relying] on defendant’s employees to properly do their job . . . (citation omitted). Plainly it would be a manifest injustice in these particular circumstances to penalize claimant for the sins of negligence or intent committed by State officers or employees . . . (citation omitted).”
1[0].Although the written claim indicates that this incident occurred on June 1, 2004, the misbehavior report [Exhibit 1], claimant’s testimony, and the surrounding circumstances - including the timing of the service and filing of the claim - make it readily apparent that the incident actually occurred on July 1, 2004.