New York State Court of Claims

New York State Court of Claims

HALL v. THE STATE OF NEW YORK, #2008-030-019, Claim No. 111098


Oral motion to dismiss, made at trial, based upon jurisdictional defense preserved in answer, granted. Inmate claimant unable to establish that he timely and properly served bailment claim as required, or that the doctrine of equitable estoppel should be applied.

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:
Third-party defendant’s attorney:

Signature date:
July 31, 2008
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


Gary Hall alleges in his claim that defendant’s agents at Green Haven Correctional Facility (hereafter Green Haven) lost his property when he was transferred from Green Haven to Upstate Correctional Facility on or about May 13, 2004. More specifically, he states that books he had obtained by mail shortly before his transfer and were stored outside his cell because he was over Green Haven’s twenty-five (25) book limit at the time of their receipt, were not with his property when he arrived at Upstate and had an opportunity to review his property. He asserts that he filed a facility claim on May 26, 2004 that was denied. This claim was filed in the office of the Chief Clerk of the Court of Claims on July 5, 2005. The un-notarized affidavit of service appended to the filed claim indicates that the claim was mailed to the office of the Attorney General on June 27, 2005.

In its answer, in addition to a general denial, the defendant asserts eight (8) affirmative defenses including lack of personal jurisdiction due to claimant’s alleged failure to serve the claim upon defendant by the proper means, and a lack of subject matter jurisdiction[1] due to the claimant’s alleged failure to serve and file his claim within 120 days of exhaustion of his administrative remedy as required.

Trial of the matter was held on July 23, 2008. Prior to the evidentiary presentation of the claim, however, the defendant orally moved for dismissal based upon its second and sixth affirmative defenses, namely the lack of personal jurisdiction resulting from claimant’s alleged failure to serve the claim by certified mail, return receipt requested or in any other authorized manner, and the purported lack of subject matter jurisdiction based upon untimely service of the claim.

Court of Claims Act §10(9)[2] requires that a claim alleging loss of personal property be served and filed within 120 days of exhaustion of a claimant’s personal property claims administrative remedy. Such remedy is codified at 7 NYCRR Part 1700 and is generally deemed exhausted once the initial review and appeal determination is made.

Court of Claims Act §11(a) provides that the claim must be served personally or by certified mail, return receipt requested, upon the attorney general within the times prescribed in Court of Claims Act §10; and that service is complete when it is received in the Attorney General’s Office. Court of Claims Act §11(a)(i). Regulations require that proof of service be filed with the Chief Clerk within ten (10) days of service on the defendant. 22 NYCRR § 206.5(a). A failure to serve the claim in the manner or within the time frame required results in a lack of personal jurisdiction, unless the State has failed to properly plead jurisdictional defenses or raise them by motion. In that case, the defense is waived. Court of Claims Act §11(c).[3] Failure to serve the claim at all results in a lack of subject matter jurisdiction that is not waiveable.

In support of the affirmative defenses raised in the answer, defendant presented a copy of the claim with the envelope in which it was received by the Attorney General’s Office [Exhibit A]; and a copy of the superintendent’s decision denying claimant’s appeal dated February 28, 2005. [Exhibit B]. The envelope shows that the claim was mailed by regular mail, not certified mail return receipt requested. [See Exhibit A]. As shown on the envelope, the postage paid is $1.06. [Id.]. That amount is inadequate to provide certified mail service, and there is no physical remnant of a green certified mail post card remaining on the envelope otherwise evidencing that the required method was used. [Id.]. Such deficient manner of service is also attested to in the affidavit of service claimant filed with the claim. Additionally, the earliest date the claim is stamped as “received” by the Attorney General’s Office is July 20, 2005, well over 120 days after the decision denying claimant’s appeal in February 2005. [See Exhibits A and B]. The verified answer containing these defenses was served upon the claimant on August 25, 2005. [Exhibit C].

In rebuttal, claimant indicated that he sent a claim to the Attorney General’s Office on June 27, 2005 without a proper verification because a notary was unavailable, that it was stamped received by the Attorney General’s Office on June 29, 2005 [see Exhibit 3], and was rejected and returned as a nullity by the Attorney General’s Office pursuant to Civil Practice Law and Rules §3022. He explained that he started “preparing”[4] the claim for the Court of Claims “immediately” upon his receipt of the administrative determination in February 2005 and was aware that he had “only 120 days to get it in the mail.” Because he kept waiting to obtain notary services, he mailed the claim at the “last possible moment,” on the “120th day.”

In addition to requesting that correctional personnel notarize his claim, Mr. Hall testified that his efforts to obtain certified mail service through the law library as required by the facility were unavailing. He testified that there were limitations imposed by the facility on the use of the law library generally, stating, for example, that only two (2) items at a time could be requested, and that the only place to obtain certified mail “tags” was at that location, and that they were frequently “out” or personnel delayed in providing them. Grievances he filed with respect to such usage had been “thrown in the garbage” by personnel. He testified that he wrote for “certified tags and return receipts” on June 29, 2005[5] but did not submit any correspondence directed to the law library for same.

He also described some of these issues in correspondence directed to the Chief Clerk of the Court of Claims that accompanied the unverified claim he filed [see Exhibits 1 and 2], as well as in correspondence to the Attorney General’s Office on July 1, 2005 and July 11, 2005. [Exhibit 4]. In the letters to the Attorney General’s Office he refers to the correspondence to the Clerk of this Court as having included “most of . . . [his] copies of . . . [his] attempts to obtain notary services here . . .” [Exhibit 4], but the Clerk’s file contains only one letter to the Clerk dated July 11, 2005 enclosing the letters to the Attorney General’s Office. The letter submitted in evidence dated June 27, 2005, addressed to the Chief Clerk [Exhibit 1], and referring to enclosed “attempted requests” to obtain notary services and certified mail tags, is not in the file maintained by the Chief Clerk, nor were any of the “attempted requests” submitted in evidence as stated. He testified that he asked repeatedly for the certified mail forms, but did not receive them, and was forced to send out an unverified claim by regular mail, and later sent the verified claim by regular mail as well because of the restrictive manner in which the services were provided. There was no documentation of a request to send the now verified claim by certified mail, return receipt requested.

Additionally, a disbursement request dated June 27, 2005 confirms that regular mail service is what was utilized to mail the unverified claim on June 27, 2005. [See Exhibit 5]. No disbursement request forms for the mailing of the verified claim that was received by the Attorney General on July 20, 2005, and responded to by verified answer, were submitted. As noted by the defendant, even if the unverified claim had not been rejected it was still not served within 120 days of the determination of his administrative appeal by certified mail return receipt requested.

Given the untimeliness and the incorrect manner of service, the Court is constrained to grant the defendant’s motion, and dismiss what might otherwise have presented as a viable claim, unless some other precept, such as the doctrine of equitable estoppel, is applied. See Wattley v State of New York, 146 Misc 2d 968 (Ct Cl 1990)[6]; cf. Rivera v State of New York, 5 AD3d 881 (3d Dept 2004)[7]; Folks v State of New York, UID # 2006-009-077, Claim No. 112365, Motion No. M-71955 (December 19, 2006, Midey, J.);[8] see also Jacobs v State of New York, 193 Misc 2d 413, 415 (Ct Cl 2002).[9] “Under certain circumstances, misfeasance or malfeasance on the part of facility officials may be a proper excuse for failure to timely file thus warranting estoppel . . . (citation omitted).” Rivera v State of New York, supra.

Most of claimant’s testimony addressed the unavailability of a notary in order to timely serve a properly verified claim. The lack of access to a notary, he alleges, hamstrung his ability to timely serve the claim, assuming, as he said, that from February 2005 to June 2005 he was “preparing his claim.” He has not, however, submitted any documentary substantiation of his activities from February to June in this regard and, indeed, the earliest dates for which there was written - and one-sided - correspondence submitted is June 2005, within days of the expiration of the 120 day period, and July 2005.

With regard to the manner of service issue, too, Mr. Hall did not specifically testify that he asked for certified mail, and provided the proper funds, and was refused, nor did he offer any written indicia that he attempted to obtain the service, but through the facility’s own process was denied. For example, the disbursement request form he submitted in evidence indicates that only regular mail service was being purchased when claimant mailed the first unverified claim on June 27, 2005. [Exhibit 5]. No disbursement form for certified mail service of the verified claim received by the Attorney General’s Office on July 20, 2005 was submitted, nor were any memoranda evidencing claimant’s intent that the facility utilize certified mail service to mail the claim. See e.g. Pierotti v State of New York, UID # 2007-028-538, Claim No. 107819, Motion No. M-72384 (March 30, 2007, Sise, P.J.). The words “legal mail” written on the outside of the envelope [see Exhibit A] do not necessarily mean that the item should be sent certified mail, return receipt requested. No copies of Mr. Hall’s inmate account statement showing a withdrawal for the correct amount, or other documentary proof have been offered to substantiate his testimony. See e.g. Wattley v State of New York, supra at 969.1[0]

Resolving issues of credibility is the province of this court as the trier of fact. LeGrand v State of New York, 195 AD2d 784 (3d Dept 1993), lv denied, 82 NY2d 663 (1993). An important part of that role is observing the behavior and demeanor of witnesses as they testify, and assessing the internal consistency of their accounts. “. . . ‘[T]he fact-finder is not required to credit a particular fact testified to by one or even six witnesses,’ but instead should assess the likelihood of a fact being true ‘by the totality of circumstances surrounding the occurrence as well as by the ordinary laws that govern human conduct’ (People v Collier, 85 Misc 2d 529, 553 [NY Sup 1975]).” Medina v State of New York, UID # 2007-028-010, Claim No. 106664 (Sise, P.J., March 2, 2007).

In this case, the sole witness to testify concerning the incidents surrounding his efforts to verify and serve his claim was Mr. Hall. Certainly the Court is not obligated to accept in its entirety the testimonial evidence offered by one witness alone. See 1A NY PJI 3d 1:41, at 55-56 (2006). This is because a Court is always required to assess the credibility and consistency of any witness offered, and has done so in this case. In this regard, any witness testifying on his own behalf can be viewed as self-serving, which is why additional documentation has been presented in all other cases involving the application of equitable estoppel in this context. See e.g. Davidson v State of New York, UID # 2006-031-019, Claim No. 111164, Motion Nos. M-70642, M-70545, CM-70625 (April 5, 2006, Minarik, J.); Pierotti v State of New York, UID # 2007-028-538, Claim No. 107819, Motion No. M-72384 (March 30, 2007 Sise, P.J.); cf. Saunders v State of New York, UID #2007-028-508, Claim No. 112459, Motion No. M-72046 (July 17, 2007, Sise, P.J.); Larrea v State of New York, UID # 2006-037-009, Claim No. 105634, Motion No. M-71497 (May 5, 2006, Moriarity, J.).1[1] Thus while claimant generally presented as a forceful and intelligent witness, to be seen as consistently credible, the Court would have expected more evidence of persistent attempts to pursue the services of a notary earlier, and persistent attempts to relay his directions to correctional personnel to provide him with certified mail service, that were demonstrably ignored. Folks v State of New York, supra. The presumption of regularity is not rebutted on this record. Wattley v State of New York, supra.

Accordingly, the Court cannot apply the doctrine of equitable estoppel to preclude the properly pleaded and raised jurisdictional defense with regard to the time and manner of service. Because the claimant has not established that he served the claim in the manner or within the time frame required, and the defense of lack of jurisdiction was preserved in the answer, such defense is not waived, has been properly raised, and may be used as a basis for a motion to dismiss even at this late date in Court of Claims practice,1[2] however meritorious the substantive aspects of a claim may be.1[3]

Defendant’s motion to dismiss based upon its second and sixth affirmative defenses is hereby granted, and claim number 111098 is hereby dismissed based on this court’s lack of personal jurisdiction over the defendant.

Let judgment be entered accordingly.

July 31, 2008
White Plains, New York

Judge of the Court of Claims

[1].See Scriven v State of New York, UID # 2007-029-048, Claim No.109689, Motion No. M-74213 (November 30, 2007, Mignano, J.), for distinction between personal and subject matter jurisdiction.

[2].“A claim of any inmate in the custody of the department of correctional services for recovery of damages for injury to or loss of personal property may not be filed unless and until the inmate has exhausted the personal property claims administrative remedy, established for inmates by the department. Such claim must be filed and served within one hundred twenty days after the date on which the inmate has exhausted such remedy.” Court of Claims Act §10(9).
[3]. “Any objection or defense based upon failure to comply with (i) the time limitations contained in section ten of this act, (ii) the manner of service requirements set forth in . . . [11(a)], or (iii) the verification requirements as set forth in . . . [11(b)] and . . . [Civil Practice Law and Rules 3022] is waived unless raised, with particularity, either by a motion to dismiss made before service of the responsive pleading is required or in the responsive pleading, and if so waived the court shall not dismiss the claim for such failure.”
[4].All quotations are to trial notes or audio recordings unless otherwise indicated.
[5]. Again, after the 120 days had passed.
[6]. Court denied defendant’s motion to dismiss for improper service. Claimant said he had attached the disbursement form for certified mail to his claim, but it apparently fell off, and additionally presented evidence that his inmate account was debited for the cost of certified mail, return receipt requested service. “Absent sufficient rebuttal (see Cole v State of New York, 64 AD2d 1023, 1024), we find the circumstances call for the invocation of equitable estoppel to prevent defendant from being rewarded for its own apparent breach of duty . . . (citation omitted).” Wattley v State of New York, supra, at 969. Additionally, the facility had an additional obstacle to getting proof of service in place, in that an inmate would only receive a receipt indicating that the special mailing request had been approved and processed, without any initial documentation that the mail was delivered to the facility mailroom.
[7]. Claimant argued that he was entitled to invoke the doctrine of equitable estoppel because of the facility mailroom’s delay in processing his legal mail which resulted in the notice of intention being untimely filed. There is no mention of the manner of service. The Appellate Division determined that “. . . claimant . . . failed to demonstrate that the mailroom delay arose out of any omissions or malfeasance on the part of the facility’s mailroom personnel . . . [A] review of the record reveals that the mail room personnel followed proper procedures in processing claimant’s legal mail (citation omitted).”
[8].Court declined to invoke equitable estoppel saying: “although the Court finds that claimant made an initial request to facility officials to have his claim served by certified mail, return receipt requested, he has submitted no evidence whatsoever to establish that he pursued his request, or submitted any further information to facility officials when his initial request was denied for lack of supporting information.” Interestingly, claimant demonstrated that he had timely asked the mail room to send the claim certified mail, return receipt requested, and that his request was denied with a note saying “Inmate must show proof that these envelopes are court mandated to be there by a certain date.”
[9]. “To the extent that the arguments here address the absence of notarization of the verifications, given the claimant’s unrefuted lack of access to the services of a notary, I find that the defendant is estopped from raising such question . . . (citation omitted).”
1[0].“While the mere allegation of a State failure to act is not sufficient to overcome the presumption of regularity (see e.g. Richardson, Evidence §72 [Prince 10th ed]), at bar we have the documentary equivalent of an admission by defendant that claimant’s mailing request was received and charged for, but not acted on. . . . (citation omitted). Claimant did what he was supposed to do and all that defendant allowed . . . [thereby relying] on defendant’s employees to properly do their job . . . (citation omitted). Plainly it would be a manifest injustice in these particular circumstances to penalize claimant for the sins of negligence or intent committed by State officers or employees . . . (citation omitted).”
[1]1. “The Court need not decide, however, whether estoppel is available to the Claimant as the Court finds that estoppel, even if available, does not apply herein as the Claimant has failed to demonstrate any omission or malfeasance on the part of the facility, failed to demonstrate that the State’s conduct induced justifiable reliance by the Claimant, and failed to demonstrate that Claimant’s position was changed as a result of such reliance . . . (citation omitted).”
1[2]. While the Court finds the practice of burying more significant defenses in an answer within a bevy of pro-forma ones, and delaying acting upon such conclusive defenses until the day of trial, an unfortunate practice - especially detrimental to pro se litigants who may be less familiar with the technicalities of practice in the Court of Claims - it is nonetheless generally allowed. Cf. Civil Practice Law and Rules §3211(e). For extreme versions of delayed assertion of defenses, and the treatment of same by the judiciary, See Arachy v State of New York, 196 AD2d 625 (2d Dept 1993) and Caprio v State of New York, 2003 WL 21512527(Ct Cl 2003), wherein the State was estopped from raising timeliness defenses because of having lulled the claimants therein into a false sense of security that such defenses would be withdrawn, and then moving to dismiss on such basis after the statute of limitations had run on the respective causes of action.
1[3].In this regard, the Court cannot help but note that what is at issue is the $74.00 of the total $91.95 [see Exhibit 7] claimant paid for eleven (11) non-fiction business books, ten (10) of which he alleges were negligently or intentionally lost by defendant’s agents. He paid a $50.00 filing fee. The cost of pursuing this claim in this Court - without considering the cost of the grievance and the inmate claim process in personnel time to DOCS - includes payments of salary to correctional personnel and the cost of the video conferencing procedure, the cost of an Assistant Attorney General’s time in preparing pleadings and attending the trial; the cost of personnel in the Clerk’s Office of the Court of Claims in processing the matter, as well as the cost of paying for the time of the judge and his staff to hear and review the merits of the claim, is well over $2,000.00, for a claim seeking reimbursement in the amount of $74.00.