New York State Court of Claims

New York State Court of Claims

IMBERT v. THE STATE OF NEW YORK, DEPARTMENT OF CORRECTIONS, #2007-040-010, Claim No. 108364, Motion No. M-72785


Synopsis


Prisoner – Bailment Claim. Motion to dismiss as improperly served granted.

Case Information

UID:
2007-040-010
Claimant(s):
EDGAR IMBERT
Claimant short name:
IMBERT
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
108364
Motion number(s):
M-72785
Cross-motion number(s):

Judge:
CHRISTOPHER J. MCCARTHY
Claimant’s attorney:
Edgar Imbert, Pro Se
Defendant’s attorney:
ANDREW M. CUOMO
Attorney General of the State of New YorkBy: Paul F. Cagino, Esq., AAG
Third-party defendant’s attorney:

Signature date:
March 1, 2007
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

For the reasons set forth below, the State’s motion to dismiss the Claim as improperly served upon Defendant is granted. It is not necessary to reach that portion of the State’s motion to dismiss the Claim as untimely served upon the Defendant and filed with the Clerk of the Court. Claimant has not submitted any opposition to the motion.

The Claim alleges that the State was negligent in losing some of Claimant’s property while Claimant was confined to the Special Housing Unit at Bare Hill Correctional Facility in Malone. Claimant filed a facility claim dated January 10, 2003 (see Ex. 3 attached to Claim). The facility claim was denied on April 11, 2003 and the denial was affirmed by a determination of the facility superintendent dated May 27, 2003 (see Ex. 6 attached to Claim and Ex. A attached to State’s motion). There is nothing in the record to indicate when Claimant received notice of the May 27, 2003 determination.

Defendant seeks dismissal of the Claim based upon Claimant's failure to properly serve the Claim upon the Attorney General in accordance with Court of Claims Act § 11(a). Court of Claims Act § 11(a)(i) provides that the claim be served personally or by certified mail, return receipt requested, upon the Attorney General within the time period provided in § 10(9). Claimant served the Claim upon the Attorney General by regular mail only (see Ex. B attached to motion). In reviewing Exhibit B, which includes a photocopy of the envelope in which the Claim was mailed, the Court notes that the postage amounted to $1.06 and that there is no certified mail or return receipt sticker on the envelope. The failure to properly serve the Attorney General gives rise to a defect in jurisdiction which, if not raised with particularity, is subject to the waiver provisions of Court of Claims Act § 11(c).

Section 11 of the Court of Claims Act constitutes a jurisdictional prerequisite to the institution and maintenance of a claim against the State and, thus, must be strictly construed (Buckles v State of New York, 221 NY 418; Ivy v State of New York, 27 AD3d 1190; Byrne v State of New York, 104 AD2d 782, lv denied 64 NY2d 607). The Court cannot waive a defect in jurisdiction that has been timely raised (Thomas v State of New York, 144 AD2d 882). Defendant timely and properly raised with particularity as its second affirmative defense in its Answer (dated November 10, 2003) that the Claim was delivered by ordinary mail. Such delivery is not a method of service in compliance with Court of Claims Act § 11(a). Therefore, the Court lacks jurisdiction over the Defendant and over the subject matter of the Claim.

Based upon the foregoing, Defendant's motion is granted and the Claim is hereby dismissed for failure to properly serve the Claim upon the Attorney General in accordance with Court of Claims Act § 11(a)(i).

It is not necessary to decide that portion of Defendant’s motion seeking dismissal of the Claim for failure to timely serve and file the Claim. Assuming, arguendo, that it was considered by the Court, it would have been denied. Court of Claims Act § 10(9) provides that a claim by an inmate for the loss of personal property may not be filed until the inmate has exhausted the administrative remedies established by the Department of Correctional Services. The statute further requires that the claim then must be filed with the Clerk of the Court and served upon the Attorney General within one hundred twenty (120) days after the date the inmate’s administrative remedies have been exhausted. The Fourth Department has held that the 120-day period in which an inmate may file and serve his or her bailment claim is measured from the date upon which the inmate receives notification that the request for administrative review has been denied, not the actual date upon which such request was denied. A claimant is not aggrieved by the mere issuance of an adverse determination, but by the receipt of notice of that determination (Blanche v State of New York, 17 AD3d 1069; Verdel v State of New York, Claim No. None, Motion No. M-70055, January 10, 2006, Sise, P.J. [UID No. 2006-028-504]).

In this case, the superintendent affirmed the decision to deny Claimant’s claim by a determination dated May 27, 2003. The Claim was served upon Defendant on October 3, 2003 (see Ex. B attached to State’s motion) and filed with the Clerk of the Court on October 6, 2003. Thus, it is correct that the Claim was not served and filed until more than 120 days from the date of the superintendent’s determination on May 27, 2003. The record contains no evidence, however, to indicate the date upon which Claimant actually received notification of that determination (see Matter of Dey v New York State Teachers’ Retirement System, 9 AD3d 908). Thus, Defendant has not established to the satisfaction of this Court that Claimant failed to timely comply with the statutory filing requirements of the Court of Claims Act and, therefore, that a fatal jurisdictional defect has occurred which requires dismissal on this ground.

Finally, the Court notes that Claimant served a notice of intention to file a claim, which was received by the Attorney General on September 29, 2003 (see Ex. C attached to State’s motion). Court of Claims Act § 10(9), which governs inmate bailment claims, does not authorize the service of a notice of intention and it has been held that this device may not be used to enlarge the time period for commencing a claim that is governed by that section (Blanche v State of New York, 3 Misc 3d 830, revd on other grounds 17 AD3d 1069; McCann v State of New York, 194 Misc 2d 340). Accordingly, Claimant’s notice of intention is of no legal consequence (Stypulkowski v State of New York, Claim No. None, Motion No. M-72090, December 19, 2006, Midey, Jr., J. [UID No. 2006-009-078]; Cepeda v State of New York, Claim No. 104717, Motion No. M-64015, October 22, 2001, Midey, Jr., J.[UID No. 2001-009-049]).


March 1, 2007
Albany, New York

HON. CHRISTOPHER J. MCCARTHY
Judge of the Court of Claims


The following papers were read and considered by the Court on the State’s motion to dismiss the Claim:

Papers Numbered


Notice of Motion, Affirmation
and Exhibits Attached 1


Filed Papers: Claim, Answer