Correspondence from claimant to Joel L. Marmelstein, Esq., Assistant Attorney
General, dated March 19, 2008 4
“Notice of Motion”, “Affidavit in Support of Motion to
Dismiss Claim as Defective”
In his claim, claimant asserts three separate causes of action. The first
cause of action sounds in wrongful confinement, the second is based upon
allegations of dental malpractice and/or negligence, and the third sounds in
bailment, as claimant is alleging the wrongful destruction of certain items of
his personal property.
According to the affirmation of defendant’s attorney (see Item 2), a
Notice of Intention to File a Claim was received by the Attorney General on
December 13, 2007. This notice of intention was sent by regular mail, and not
by certified mail, return receipt requested. A claim was then served upon the
Attorney General on February 7, 2008, by certified mail, return receipt
With regard to the first two causes of action (wrongful confinement and dental
malpractice/negligence), defendant contends that service of the notice of
intention is a legal nullity, due to claimant’s failure to send it by
certified mail, return receipt requested as required by Court of Claims Act
§ 11(a)(i). Defendant further contends that claimant’s time to then
serve his claim was therefore not extended (as would have been permitted by a
properly served notice of intention), rendering the service of the claim on
February 7, 2008 untimely and jurisdictionally defective.
As indicated by claimant’s response papers (see Items 3-6), and
particularly by his correspondence to defendant’s attorney (see Item 4),
claimant apparently agrees with defendant’s attorney that his claim was
not timely served, but only with respect to the causes of action alleging
illegal confinement and dental malpractice. Claimant has agreed to withdraw
these two causes of action which have been asserted in this claim.
The service and filing requirements for inmate bailment claims, however, are
distinct from the jurisdictional prerequisites pertaining to intentional torts
(§ 10[3-b]) or those based upon negligence (§ 10 ). Section 10(9)
of the Court of Claims Act requires an inmate to first exhaust administrative
remedies and then serve and file a claim within 120 days from such date.
In this matter, claimant contends that he requested, but never received, an
administrative review of his bailment claim. He apparently alleges that his
claim accrued on October 10, 2007, when certain items of his personal property
were confiscated. Additionally, defendant concedes that the claim was received
by the Attorney General on February 7, 2008, and that such claim was mailed by
certified mail, return receipt requested, in compliance with statute.
Therefore, without any allowance for the time it presumably took claimant to
attempt to exhaust his administrative remedies, this claim was served, by this
Court’s calculations, on the 120th day following his loss of property, and
is therefore timely with respect to the bailment cause of action.
Defendant further contends, however, that claimant has failed to state
“the total sum sought” as required by Court of Claims Act § 11
(Lepkowski v State of New York, 1 NY3d 201; Kolnacki v State of New
York, 8 NY3d 277), with respect to the bailment cause of action. Claimant,
however, has set forth the sum of $40,000.00 in his ad damnum clause of
his claim. Even though this amount presumably covers damages allegedly
resulting from all three causes of action originally asserted in his claim, and
is not limited to the sole remaining cause of action, claimant nevertheless has
satisfied the strict pleading requirements required by Lepkowski.
Defendant also contends that claimant has failed to attach “a schedule
showing in detail each item of damage claimed and the amount of such item”
as required by § 206.6(b) of the Uniform Rules for the Court of Claims.
Although § 206.6 of the Uniform Rules sets forth additional requirements
for a claim or notice of intention to file a claim, in addition to those
requirements prescribed by § 11 of the Court of Claims Act, it is only
those requirements set forth in § 11 that must specifically be included in
a claim to provide this Court with subject matter jurisdiction (Lepkowski v
State of New York, supra; Kolnacki v State of New York, supra).
Therefore, as long as a claimant has satisfied the jurisdictional prerequisites
set forth in § 11, the failure to comply with additional technical
pleading requirements contained in the Court’s Rules does not divest this
Court of jurisdiction to hear and determine the claim.
Accordingly, for the reasons set forth herein, it is
ORDERED, that with respect to the causes of action for illegal confinement and
dental malpractice, Motion No. M-74641 is hereby GRANTED,and those causes of
action are hereby dismissed; and it is further
ORDERED, that with respect to the cause of action sounding in bailment, Motion
No. M-74641 is hereby DENIED, and that cause of action is retained.