New York State Court of Claims

New York State Court of Claims

HORTON v. THE STATE OF NEW YORK, #2008-015-052, Claim No. 114960, Motion No. M-74784


Defendant's motion to dismiss claim due to improper service was granted.

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:
Robert A. Horton, Pro Se
Defendant’s attorney:
Honorable Andrew M. Cuomo, Attorney General
By: Paul F. Cagino, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
July 1, 2008
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


Defendant moves for dismissal of this bailment claim pursuant to CPLR 3211 (a) (2) and (8) on the grounds that the Court has neither subject matter of the claim nor personal jurisdiction over the defendant due to improper service of the claim and the failure to exhaust administrative remedies as required by Court of Claims Act § 10 (9). Claimant, an inmate proceeding pro se, seeks damages for personal property allegedly lost and/or and damaged during the course of his transfer from Mt. McGregor Correctional Facility to the special housing unit (SHU) at Greene Correctional Facility (Greene CF) on August 6, 2007.

The claim was filed on March 11, 2008 and it is undisputed that the claim was served upon the Attorney General by regular mail on the same date (defendant's Exhibit C).

Court of Claims Act § 11(a) (i) requires that the claim be filed with the clerk of the court and that “a copy shall be served upon the attorney general . . . either personally or by certified mail, return receipt requested . . ." Service of the claim by ordinary mail service is therefore improper (Fulton v State of New York, 35 AD3d 977 (2006), lv denied 8 NY3d 809 (2007); Govan v State of New York, 301 AD2d 757 [2003], lv denied 99 NY2d 510 [2003]; Thompson v State of New York, 286 AD2d 831 [2001]).

Claimant argues in opposition to this branch of the motion that by letter to the Clerk of the Court of Claims dated March 10, 2008 he requested a waiver of the service requirements because he did not have the funds necessary to serve the claim by certified mail, return receipt requested. Review of the papers filed with the Clerk's Office confirms that claimant did indeed send a letter to the Clerk in which he requested the Court (not the Attorney General's office) to accept the claim for filing by regular mail because the facility in which he was confined had twice rejected - for insufficient funds - his attempts to send the claim by certified mail, return receipt requested, and would not advance him the money necessary to do so. The claimant also requested that the Clerk's office return the claim to him if filing of the claim by regular mail could not be accomplished. As the claim was not returned by the Clerk, the claimant now argues that any objection to the manner of service was waived.

In making this argument the claimant fails to recognize that the service requirements of Court of Claims Act § 11 (a) (i) pertain to the manner in which the claim is served on the Attorney General, not the manner in which it is to be filed with the Court. Having timely moved for dismissal pursuant to CPLR 3211 (a) (8) the defendant did not waive its defense relative to the manner in which the claim was served (see Court of Claims Act § 11 [c]). As "nothing less than strict compliance with the jurisdictional requirements of the Court of Claims Act is necessary", dismissal of the claim is required (Filozof v State of New York, 45 AD3d 1405 [2007], quoting Kolnacki v State of New York, 8 NY3d 277, 281 [2007], rearg denied 8 NY3d 994 [2007]).

Moreover, the defendant established that the claimant failed to appeal the denial of his administrative claims and therefore failed to exhaust his administrative remedies as required (see Court of Claims Act § 10 [9]; see 7 NYCRR 1700.3; Williams v State of New York, 38 AD3d 646 [2007]).

Based on the foregoing, the defendant's motion is granted and the claim is dismissed.

July 1, 2008
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
  1. Notice of motion dated April 7, 2008;
  2. Affirmation of Paul F. Cagino dated April 7, 2008 with exhibits;
  3. Affirmation of Robert A. Horton dated April 13, 2008.