New York State Court of Claims

New York State Court of Claims

PETTUS v. THE STATE OF NEW YORK, #2007-044-512, Claim No. 109717, Motion Nos. M-72867, M-72874


Synopsis


Improper service requires dismissal of inmate's claim.

Case Information

UID:
2007-044-512
Claimant(s):
JAMES PETTUS
Claimant short name:
PETTUS
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
109717
Motion number(s):
M-72867, M-72874
Cross-motion number(s):

Judge:
CATHERINE C. SCHAEWE
Claimant’s attorney:
JAMES PETTUS, pro se
Defendant’s attorney:
HON. ANDREW M. CUOMO, ATTORNEY GENERAL
BY: Joseph F. Romani, Assistant Attorney General Carol A. Cocchiola, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
February 27, 2007
City:
Binghamton
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant, an inmate proceeding pro se, alleges that on May 11, 2004, personnel at Southport Correctional Facility improperly opened his legal mail, outside of his presence and without his permission, and removed a judgment check in the amount of $650. Defendant answered and asserted as affirmative defenses that service of the notice of intention to file a claim and service of the claim were both improper. Claimant moves for a telephonic settlement conference which defendant opposes. Defendant moves to dismiss the action arguing that because claimant served both the notice of intention to file a claim and the claim by regular mail, this court lacks jurisdiction. Claimant opposes defendant’s motion. Defendant’s Motion No. M-72874 is potentially dispositive and will be addressed first. Claimant served a notice of intention to file a claim which was executed on July 20, 2004 “under penalty of perjury.” The affidavit of service states that claimant mailed the notice of intention by certified mail on July 20, 2004. The notice of intention was received in the Attorney General’s Office on July 28, 2004, and claimant was notified that the notice of intention was being treated as a nullity because it was not notarized. Claimant served a second notice of intention which was apparently notarized on August 3, 2004 by notary public Diane G. Hill. The accompanying affidavit of service also indicates service by certified mail on July 20, 2004 and appears to have been executed on August 8, 2004. The second notice of intention was mailed in an envelope that was postmarked on August 4, 2004 and received in the Attorney General’s Office on August 6, 2004. The claim was thereafter filed and served on August 11, 2004.

  Court of Claims Act § 10 (3-b) requires that in an action to recover for damages caused by the intentional tort of an officer or employee of the State, the claim must be filed with the Clerk of the Court and served upon the Attorney General within ninety days after the accrual of the claim, unless a notice of intention to file a claim is served upon the Attorney General within ninety days after the accrual of such claim. Court of Claims Act § 11 (a) requires that service on the Attorney General's office be made either personally, or by certified mail, return receipt requested.

Initially, the first notice of intention to file a claim was not notarized and thus properly rejected and returned to claimant with an explanation of its deficiencies (see Court of Claims Act § 11[b]; Lepkowski v State of New York, 1 NY3d 201 [2003]). Disregarding the apparent irregularity of the affidavit of service of the second notice of intention, said affidavit indicates that the notice was sent by certified mail. However, in support of its motion, defendant offers a photocopy of the original envelope, which contains postage of $.60. The envelope does not indicate that it was sent certified mail, return receipt requested and claimant has not submitted a copy of the return receipt postcard. The Court therefore concludes that the second notice of intention was invalid as it was not properly served by certified mail, return receipt requested (Fulton v State of New York, 35 AD3d 977 [2006]).

The claim filed and served on August 11, 2004 was also not properly served. Although claimant’s affidavit of service states that the claim was served on the Attorney General by certified mail, return receipt requested, defendant’s submission of a photocopy of the original envelope mailed on August 9, 2004 reveals that the envelope has postage of only $.60. The envelope further lacks any indication that it was sent by certified mail, return receipt requested, and claimant has not provided a copy of a return receipt postcard. The Court therefore concludes that claimant has not met his burden of proof of service by certified mail, return receipt requested. Mail service of the claim by any means other than certified mail, return receipt requested, is insufficient to acquire jurisdiction over the State. Defendant’s properly pleaded jurisdictional defense of improper service is valid and dispositive of this action (see Court of Claims Act § 11 [c]; Fulton v State of New York, supra; Philippe v State of New York, 248 AD2d 827 [1998]).

Defendant’s motion is granted and Claim No. 109717 is hereby dismissed. Claimant’s motion for a settlement conference is denied as moot.


February 27, 2007
Binghamton, New York

HON. CATHERINE C. SCHAEWE
Judge of the Court of Claims


The following papers were read on claimant’s motion for a telephonic settlement conference and defendant’s motion to dismiss:

1) Notice of Motion for a settlement conference filed on January 22, 2007; Unsworn “Affidavit/Affirmation” of James Pettus dated January 18, 2007.

  1. Affirmation in Opposition of Joseph F. Romani, AAG, dated February 2, 2007, and attached Exhibit A.
3) Notice of Motion to dismiss filed on January 25, 2007; Affirmation of Carol A. Cocchiola, AAG, dated January 23, 2007, and attached Exhibits A through D.

  1. Unsworn and undated “Affidavit/Affirmation” of James Pettus filed on January 30, 2007, in opposition to the motion.

Filed papers: Claim filed on August 11, 2004; Verified Answer filed on September 22, 2004.