New York State Court of Claims

New York State Court of Claims

JOHNSON v. THE STATE OF NEW YORK, #2007-044-545, Claim No. 113075, Motion No. M-72965


Inmate's claim dismissed for improper service by regular mail. Claimant’s argument that the State should be estopped from arguing improper service because he had been denied an advance for postage to properly serve the claim was without merit; DOCS directives prohibited advancing postage where more than $20 had already been advanced and claimant made no showing that the mail had to be sent prior to the next week's advance of postage (nor could he make such a showing)

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:
July 5, 2007

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant, an inmate proceeding pro se, commenced this action seeking recovery for personal injuries allegedly received when a fellow inmate threw fecal matter at him, purportedly due to the negligence of defendant State of New York (defendant). Defendant answered and asserted various affirmative defenses. Defendant now moves to dismiss the claim on the ground that it was improperly served on the Office of the Attorney General by regular mail, rather than by personal service or by certified mail, return receipt requested. Claimant opposes the motion. Court of Claims Act § 10 (3-a) requires that in an action to recover for damages caused by the negligence 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 § 11 (a) requires that service on the Attorney General's office be made either personally, or by certified mail, return receipt requested. Claimant asserts that defendant’s allegedly negligent conduct occurred on November 13, 2006. Claimant’s affidavit of service annexed to the claim states that claimant mailed the claim by certified mail, return receipt requested, on December 4, 2006. The claim was received in the Attorney General’s Office on December 12, 2006.[1] However, the envelope addressed to the Attorney General (postmarked December 11, 2006) and submitted as an exhibit to defendant's motion, contains postage of $0.87, which is clearly insufficient for certified mail, return receipt requested. Defendant argues that claimant's failure to serve the claim by certified mail, return receipt requested renders this Court without jurisdiction.

Conversely, claimant contends that he submitted a request on December 4, 2006 for the facility to advance him the postage, as he had insufficient funds in his account at that time to pay for the postage. The request was denied by the facility, and the claim was apparently sent via regular mail, although it is unclear whether or when claimant was notified of the method by which the claim was sent.

Claimant filed an institutional grievance on December 6, 2006 for defendant's failure to advance postage pursuant to the Court of Claims Act and the Department of Correctional Services (DOCS) Directives 4421 and 2788. Claimant's grievance was denied on the ground that he failed to “provide proof to the Business Office,”[2] and his appeal was denied as well.

DOCS Directive 4421 (see also 7 NYCRR 721.3 [a] [3] [iv]) provides in pertinent part:
To ensure that indigent inmates maintain their right of access to the courts, the facility shall approve an IAS 2708 advance request to pay for first class mail postage if the inmate has insufficient funds and if the following conditions are met:
(a) the mail is legal mail (e.g., it is addressed to a judge, clerk of court, attorney, or authorized legal representative; or is directly related to a potential or ongoing legal matter);
(b) any balance of the inmate's free weekly postage allowance is applied to the legal mail postage costs; and,
(c) the requested advance and the balance of unpaid previous advances for legal mail postage do not exceed $20.00, except as may be approved under subparagraph (vi) [as follows:]
Exceeding the $20.00 limit shall only be approved if the inmate can show by court rule, court order, a statute of limitations, or other legal deadline applicable to his or her individual circumstance that the legal mail must be sent prior to receipt of the next week's free postage allowance. The inmate must provide justification for such advance.
DOCS directive 2788 contains essentially the same provisions.

Claimant's advance postage request dated December 4, 2006 contains the notation: “Over 20.00 advanced. No proof submitted.” Consequently, claimant would have had to prove that his particular circumstances necessitated sending the claim prior to the next week's allowance of postage. Claimant obviously could not do that, as the 90-day filing requirement set forth above would not have expired until February 13, 2007.[3]

Claimant's assertion that defendant deliberately failed to abide by his instructions and should be estopped from raising improper service as a basis for dismissal is patently without merit. Defendant's directives, the details of which Mr. Johnson is well aware (due to his proclivity for litigation against defendant), clearly prohibit advancing postage to claimant under these circumstances. Moreover, claimant had until early February 2007 to accumulate the necessary postage or, the week prior to the statutory deadline, provide proof that the postage should be advanced despite having already been advanced more than $20.00.

Claimant's failure to comply with the statutory certified mail requirement mandates dismissal, as the Court has no subject matter jurisdiction (see Finnerty v New York State Thruway Auth., 75 NY2d 721 [1989]). Governmental agencies are generally not subject to the defense of estoppel except in the “rarest of cases” (Matter of Rembert v Perales, 187 AD2d 784, 786 [1992]), and this is not such a case (see Cendales v State of New York, 2 AD3d 1165, 1167 [2003]).

Defendant's Motion No. M-72965 to dismiss Claim No. 113075 is hereby granted.

July 5, 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 20, 2007; Affirmation of Roberto Barbosa, AAG, dated February 15, 2007, and attached Exhibits A through C.

2) Claimant’s “Opposition to Defendant’s Motion to Dismiss” dated on February 20, 2007, and attached exhibits.

[1]. ¶6, Affirmation of Roberto Barbosa, Assistant Attorney General, in support of Motion to Dismiss.
[2]. Claimant's Exhibit 3.
[3]. Although February 11, 2007 was the 90th day after accrual, because it was a Sunday, the time to serve the claim was extended until the next business day which was February 13, 2007 (General Construction Law § 25-a [1] [February 12, 2007 was Lincoln’s Birthday, a public holiday (General Construction Law § 24)]).