New York State Court of Claims

New York State Court of Claims

GRANT v. THE STATE OF NEW YORK, #2007-044-526, Claim No. 112805, Motion No. M-72952


Defendant's motion to dismiss granted where inmate's claim for unjust conviction not timely filed. Moreover, service of the claim by regular mail was insufficient to obtain jurisdiction over the State

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:
HON. ANDREW M. CUOMO, ATTORNEY GENERALBY: Roberto Barbosa, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
May 14, 2007

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant, an inmate proceeding pro se, filed this claim alleging that he was wrongfully confined in the Special Housing Unit (SHU) during his incarceration at Southport Correctional Facility. Claimant alleges that his disciplinary sentence of nine months in SHU was administratively reversed on December 19, 2005, but he was not released from confinement until January 13, 2006. Defendant State of New York (defendant) answered and asserted several affirmative defenses. Defendant moves to dismiss the claim. Claimant has not responded to the motion. In an action to recover damages for personal injuries 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 90 days after the accrual of the claim, unless a notice of intention to file a claim is served upon the Attorney General within 90 days after the accrual of such claim (Court of Claims Act § 10 [3-b]). Accepting claimant’s allegations as true, this claim accrued on January 13, 2006 when he was released from SHU confinement (see Ramirez v State of New York, 171 Misc 2d 677, 679-680 [1997]), and either a claim must have been filed and served, or a notice of intention must have been served, by April 13, 2006.

Claimant filed his claim with the Clerk of the Court on September 25, 2006 and served the claim on the Attorney General's office on September 21, 2006, as evidenced by a photocopy of the envelope containing the claim.[1] Although neither the filing nor the service of the claim were timely,[2] defendant has raised the issue of timeliness only with respect to the filing of the claim.[3] Because the claim was not timely filed, it must be dismissed.

Even if this claim was timely, the claim would be dismissed for lack of personal jurisdiction over defendant. Court of Claims Act § 11 (a) 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. Claimant’s affidavit of service filed with the claim does not indicate that the documents were sent certified mail, return receipt requested. On November 1, 2006, claimant filed with the Clerk of the Court copies of a certified mail return receipt signature card and disbursement form regarding Claim No. 112805 with an affidavit of service. The certified mail receipt indicates that the article was addressed to:
Attorney General
New York State Court of Claims
P.O. Box 7344 Capitol Station
Albany, New York, 12224

The address is the mailing address for the Court of Claims and the return receipt signature card, showing a delivery date of September 7, 2006, was signed by a Court employee. Claimant has not established proper service on the Attorney General with his affidavit of service sworn to October 26, 2006.[4]

Moreover, the envelope which was properly addressed to the Attorney General (and was received on September 21, 2006) has postage of only $0.63 (less than that required for certified mail, return receipt requested) and is completely devoid of any indication that it was sent certified mail, return receipt requested.[5] Based upon the evidence in the record, claimant has failed to meet his burden of establishing proper service of the claim on the Attorney General and the claim would be subject to dismissal on this basis as well (Commack Self-Serv. Kosher Meats v State of New York, 270 AD2d 687 [2000]; Hopkins v Tinghino, 248 AD2d 794 [1998]).

Claimant's failure to comply with the filing and service requirements set forth in Sections 10 and 11 of the Court of Claims Act is jurisdictional in nature, and these requirements must be strictly construed (Finnerty v New York State Thruway Auth., 75 NY2d 721, 722 [1989]). Failure to comply mandates dismissal (Lichtenstein v State of New York, 93 NY2d 911 [1999]).

Claim No. 112805 is therefore dismissed in its entirety.[6]

May 14, 2007
Binghamton, New York

Judge of the Court of Claims

The following papers were read on Defendant’s motion to dismiss:

(1) Notice of Motion filed on February 16, 2007; Affirmation of Roberto Barbosa, AAG dated February 13, 2007, and annexed Exhibits A and B.

Filed papers: Claim filed on September 25, 2006; Verified Answer filed on October 13, 2006.

[1]. Claimant’s affidavit of service filed in the Court Clerk’s Office, simultaneously with the claim, states that he mailed a copy of the verified claim and motion for leave to proceed as a poor person on “September , 2006.”
[2]. There is no allegation that claimant served a notice of intention.
[3]. Verified Answer, ¶ 7. Defendant, having failed to raise the issue of untimely service in its answer, has waived that defense (Court of Claims Act § 11 [c]).
[4]. In any event, the claim was verified on September 14, 2006, and thus, could not have been included in the contents of that certified mailing.
[5]. Defendant’s motion to dismiss, Exhibit A.
[6]. Claimant is also precluded from requesting permission to file a late claim. Pursuant to Court of Claims Act § 10 (6), a motion to file a late claim is timely if it is made “before an action asserting a like claim against a citizen of the state would be barred under the provisions of [CPLR article 2].” A cause of action for wrongful confinement or false imprisonment must be brought within one year of its accrual (CPLR 215 [3]). Because claimant’s cause of action accrued on January 13, 2006, a motion for permission to file a late claim would now be untimely.