New York State Court of Claims

New York State Court of Claims

HINTON v. THE STATE OF NEW YORK, #2007-030-578, Claim No. 114094, Motion Nos. M-74043, M-74044, M-74045


Defendant’s pre-answer motion to dismiss granted. Notice of Intention timely served regular mail, did not serve to extend time within which to serve and file claim alleging pro se inmate’s harassment by correction officers. Claim itself served more than one (1) year after accrual, by certified mail, return receipt requested. Claimant’s motions to compel discovery and to proceed as poor person denied.

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):
M-74043, M-74044, M-74045
Cross-motion number(s):

Claimant’s attorney:
Defendant’s attorney:
Third-party defendant’s attorney:

Signature date:
November 2, 2007
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers were read and considered on defendant’s motion to dismiss [M-

74043], claimant’s motion to compel discovery [M-74044] and claimant’s motion to proceed as

a poor person [M-74045]:

1,2 Notice of Motion [M-74043], Affirmation in Support of Motion to Dismiss by Jeane L. Strickland Smith, Assistant Attorney General and attached exhibits

  1. “Claimant Affidavit in Opposition to Defendant’s Motion to Dismiss” by Randolph Hinton, claimant and attached exhibits
  1. Notice of Motion [M-74044], Affidavit in Support of Notice of Motion by Randolph Hinton, claimant; Memorandum of Law
  1. Affirmation in Opposition by Jeane L. Strickland Smith, Assistant Attorney General and attached exhibit
  1. “Claimant Affidavit in Reply to Defendant’s Affirmation in Opposition” by Randolph Hinton, claimant
  1. Petition [M-74045]; Claim by Randolph Hinton, claimant
  1. Filed papers: Claim
Randolph Hinton alleges in his claim that defendant’s agents at Green Haven Correctional Facility intentionally harassed him on June 28, 2006. At approximately 5:00 a.m. on that day he was transported to Green Haven for a medical appointment. While at Green Haven, he observed other inmates receiving food boxes, and overheard their conversation with Officer Heister, the transport officer, as to whether they could bring the unfinished sandwiches to their respective home facilities. When Officer Heister granted and then denied them permission, claimant suggested to the inmates that they wait for the officer in charge to inquire about bringing the sandwiches back. After making these suggestions, Mr. Hinton avers
“. . . Officer Heister charged over to me with the smell of alcohol, spitting and pointing his finger in my face and stated: ‘F*** the Sergeant,’ ‘You scumbag-son-b***.’ ‘Sit your mother f***ing ass down,’ ‘you son-of-b****.’ However, it is respectfully submitted; I refused to sit down as the Officer ordered for fear he was going to hit me. Then, Officer Heister, reiterated his intentionally harassing and prejudicial remarks against me.” [Claim number 114094, ¶ 6].
A notice of intention to file a claim attesting to the forgoing was served on the Attorney General’s Office by regular mail on or about September 15, 2006. [Affirmation in Support of Motion to Dismiss by Jeane L. Strickland Smith, ¶3, Exhibit A]. The claim itself was served by certified mail, return receipt requested on August 15, 2007, and was filed in the office of the Chief Clerk of the Court of Claims on the same date. [Ibid. ¶4, Exhibit B].

In its pre-answer motion to dismiss, the defendant seeks an order dismissing the claim because claimant failed to timely serve and file his claim in accordance with Court of Claims Act §§10 and 11. Court of Claims Act §11(b) requires that a notice of intention “. . . state the time when and place where such claim arose, [and] the nature of same . . . ” The purpose of the notice of intention is to put the defendant State on notice of potential suit against it, so that it may investigate the claim and infer a theory of liability. It also acts to extend the period within which a claim must be served and filed, provided it has been properly served and contains the required information. Court of Claims Act §11(a) requires that a notice of intention - as well as the claim - be served upon the attorney general either personally, by certified mail, return receipt requested, or by facsimile transmission under limited circumstances, within the time prescribed in Court of Claims Act §10. Service is complete when the documents are received in the Attorney General’s Office. Court of Claims Act §11(a)(i). Court of Claims Act §10(3-b) - referring to intentional torts - requires service within ninety (90) days of accrual of the claim, as does Court of Claims Act §10(3), referring to claims of negligence. If a notice of intention has been properly served, with regard to intentional torts it allows service of the claim within one (1) year of accrual, and with regard to causes of action sounding in negligence, a claim may be served within two (2) years of accrual.

The date of accrual herein is June 28, 2006. Because the claimant here did not serve his notice of intention by certified mail, return receipt requested the notice of intention did not operate to allow service of the claim itself more than one (1) year after its accrual.

Claimant’s arguments concerning exhausting his administrative remedies have no bearing on the issue raised by the Defendant, given the causes of action asserted herein. Moreover, claimant asserts that his grievance concerning the officer was finally decided on August 23, 2006. [See “Claimant Affidavit in Opposition to Defendant’s Motion to Dismiss” by Randolph Hinton, ¶3]. Even if this were the accrual date, the claim served and filed herein is untimely, and the notice of intention is still ineffectual.

The filing and service requirements contained in §§10 and 11 of the Court of Claims Act are jurisdictional in nature. 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. Since the defense has been properly raised by defendant in this pre-answer motion to dismiss, claimant’s failure to timely and properly serve the notice of intention and the claim warrants dismissal. Court of Claims Act §11(c).

The claimant has the burden of establishing proper service [Boudreau v Ivanov, 154 AD2d 638, 639 (2d Dept 1989)] by a preponderance of the evidence. See Maldonado v County of Suffolk, 229 AD2d 376 (2d Dept 1996). Regulations require that proof of service be filed with the Chief Clerk within ten (10) days of service on the defendant. 22 NYCRR § 206.5(a).

Here, the claimant has not established that he served the notice of intention upon the Attorney General as required, or that he timely served the claim as required, and the defendant has raised the jurisdictional issue in a timely motion.

Accordingly, defendant’s motion is hereby granted, and Claim Number 114094 is in all respects dismissed. Given the court’s dismissal of the claim, the remaining motions are in all respects denied [M-74044; M-74045].

November 2, 2007
White Plains, New York

Judge of the Court of Claims