New York State Court of Claims

New York State Court of Claims

BOEHM v. THE STATE OF NEW YORK, #2008-030-023, Claim No. 113664


Synopsis


Claim alleging assault by correction officer dismissed as untimely, since served more than one year after accrual. Defense preserved in answer, thus motion made at trial granted. Estoppel argument suggested but not sustained. Had matter been determined on the merits, claimant presented credible evidence of an unprovoked assault by a correction officer, including medical evidence, that was not rebutted by any defense evidence, since defendant did not call any correction officers. No medical expert would have been necessary to establish a causal connection between the allegation of an assault, and the diagnosis of a right rib fracture one month later, since no defense witness rebutted the testimony offered by claimant as to the genesis of such fracture.

Case Information

UID:
2008-030-023
Claimant(s):
ROBERT BOEHM
Claimant short name:
BOEHM
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
113664
Motion number(s):

Cross-motion number(s):

Judge:
THOMAS H. SCUCCIMARRA
Claimant’s attorney:
ROBERT BOEHM, PRO SE
Defendant’s attorney:
HON. ANDREW M. CUOMO, NEW YORK STATE ATTORNEY GENERAL
BY: J. GARDNER RYAN, ASSISTANT ATTORNEY GENERAL
Third-party defendant’s attorney:

Signature date:
September 29, 2008
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision
Robert Boehm alleges in his claim that defendant’s agents at Downstate Correctional Facility assaulted him on or about May 5, 2006, causing him physical injury. Trial of the matter was held on September 12, 2008.
As an initial matter, the defendant moved to dismiss the claim based upon claimant’s failure to timely serve his claim upon the Attorney General’s Office. Defendant argued that although a notice of intention was timely and properly served upon the Attorney General’s Office on July 26, 2006, the claim itself was not served within one (1) year of accrual as required, in that it was received on May 14, 2007. Court of Claims Act §10(3-b). Defendant submitted the original claim received and the transmitting envelope, showing certified mail service and receipt by the Attorney General’s Office on the day indicated. [See Exhibit A].
Claimant argued that he had timely completed a disbursement request form for certified mail service on Sunday, April 29, 2007(“knowing it would not go out until Monday”
[1]
), but that personnel failed to comply with the facility’s own regulations with regard to processing his mail, resulting in a delay. More specifically, he indicated that regulations require that disbursement requests should be processed “on the same day” they are requested with regard to legal mail, yet his mail was not sent out until May 10, 2007.
Claimant said the disbursement forms he completed show submission of the forms on Monday, April 30, 2007 for certified mail service, and it “was supposed to have been taken care of in three days.” [See Exhibit 2]. He said that the pink copy of the form is supposed to be returned to the inmate within “five to seven business days.” The disbursement form he completed requesting certified mail service to the Attorney General’s Office - a form that contained a notation that the contents to be mailed were legal mail - was not returned until May 10, 2007, as reflected in a note he made on the forms at the time. [See id.]. The Court also notes that the envelope containing the claim that was received by the Attorney General’s Office on May 14, 2007 is postmarked May 10, 2007 [see Exhibit A], suggesting that once in the hands of the United States Postal Service, delivery would take four (4) days.
Mr. Boehm filed a grievance regarding the perceived delay in sending out his mail almost immediately. [See Exhibits 1 and 3]. He writes in the grievance, dated May 4, 2007, that
“Facility employees within housing block A and administrative . . . (illegible) are failing to comply with P & P 101 and directive 2798, which clearly states that all inmate [disbursements] are to be sent to inmate accounts on a daily basis. It is the responsibility of both Housing block Sergeant and Administrative Lieutenant to ensure that all [disbursement] delivery is in compliance with said directive
. . . It took 3 days for both urgent certified legal mail and . . . [disbursement] to reach the business office.” [Exhibit 1].

The initial grievance denial dated June 15, 2007 states in part:
“. . . Investigation was conducted, and it was shown that the proper procedures as outlined in Policy & Procedure #101 are followed. In the instant case, however, under direction from Albany, a ‘hold’ was placed on all disbursement processing until the completion of an investigation. Once the investigation was concluded, all disbursements were immediately processed.” [Ibid.].

The final determination by the Central Office Review Committee [CORC] dated August 8, 2007 agreed with claimant’s request that the disbursement process be in compliance with Directive 2798 and Policy and Procedures 101, noting, however, that
“FOMP #101 governs the processing of a disbursement form from the housing unit to the business office. It does not pertain to the processing of the disbursement by business office staff. CORC cites Directive #2798, section III, A, 1, b, which states, i.e. ‘Except for disbursement for legal photocopies, an inmate’s disbursement form should be processed within 10 business days of receipt in the business office.’. . . ” [Exhibit 3].

The CORC determination also noted that any “hold” on disbursement processing had been lifted

April 13, 2007 and had no effect on this transaction [ibid.].

When questioned by counsel for the defendant, Mr. Boehm indicated that he was aware of procedures for processing disbursement requests that allow the accounts department ten (10) days to process such request, and claimant acknowledged that he was reminded of this fact in the grievance response. [See Exhibit 3]. He also agreed that a mailing on May 10, 2007 is within ten days of submission on April 30, 2007.
Claimant also argued, however, that a ten-day policy does not apply to “legal certified mail requests.” He argued: “When I put the request in corrections’ hands, that officer is responsible for sending it down, having it signed off by the sergeant, and the sergeant then takes it to the box and brings it up to the business office. This is supposed to happen on a daily basis.” He reiterated that “Directive 101 was not adhered to.”
No copies of these directives or policies were submitted, nor may the Court take judicial notice of same since they do not appear to be otherwise disseminated to those who are not within the facility.
The regulations that are published and available for judicial review [see 7 NYCRR Part 721] regarding legal mail - “privileged” correspondence - do not contain any particular restrictions on the time frame for the internal processing of outgoing legal mail. Other than the general indication that all mail is collected at least once daily and forwarded to the United States Post Office “once a day” [7 NYCRR §720.5(a)], the regulations are silent as to any time restrictions. Indeed, the regulations surrounding privileged correspondence primarily set forth how the availability of funds for postage costs is assessed - including advances where applicable, and reference to the office of counsel for a determination as to whether an advance may be denied - rather than deadlines for the performance of these functions. [7 NYCRR 721.3].
Significantly, claimant testified as to his awareness that any disbursement requests he forwarded might take ten (10) days to process. His awareness of the need for this type of leeway when mailing out his mail is also apparent in the various statements he included in his grievance documents. [See Exhibit 3].
As stated with sufficient particularity in defendant’s answer, the court lacks jurisdiction based upon the failure to timely serve the claim on the Attorney General’s Office. Court of Claims Act §§10 and 11. Court of Claims Act §11(a)(i) 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. Importantly, service is complete when it is received in the Attorney General’s Office. [Id.].
[2]
Untimely service upon the Attorney General - although a waiveable defect - results in a lack of jurisdiction unless the State has failed to properly plead jurisdictional defenses or raise them by motion. See Court of Claims Act §11(c).
[3]

At this juncture dismissal is a final resolution of the matter, since late claim relief would not be available given the cause of action for an intentional tort. Court of Claims Act §§10(6), 10 (3-b); Civil Practice Law and Rules §215; cf. Davidson v State of New York, UID # 2006-031-019, Claim No. 111164, Motion Nos. M-70642, M-70545, CM-70625 (Minarik, J., April 5, 2006).
[4]

Nonetheless, on this record, the claimant appears to have waited until the eleventh hour to serve and file his claim, with an awareness that there were processing issues or limitations within the facility. Indeed, it was his testimony that the processing of disbursement request forms - particularly for certified mail requests - should be “taken care of in three days.” Even assuming his understanding was accurate at three (3) days, the mailing would have gone out on May 2 or May 3, and would have been untimely received in any case given the four (4) day USPS delivery time frame as shown on the postmarked mail. [Exhibit A]. Mr. Boehm also argued that legal mail should be treated differently - as well it might - however here personnel apparently followed the facility’s regulations in this regard, and claimant himself attested to an awareness that processing by the business office could take time. The defense has been properly pleaded, and alerted claimant to a basic infirmity to prosecuting his claim. Accordingly, the court will grant the motion to dismiss, unless some other principle, such as the doctrine of equitable estoppel, is applied. See Wattley v State of New York, 146 Misc 2d 968 (Ct Cl 1990)
[5]
; cf. Rivera v State of New York, 5 AD3d 881 (3d Dept 2004);
[6]
Davidson v State of New York, supra.
In this case, the elements for applying an estoppel do not appear to have been made out. Claimant’s testimony did not establish any failure to comply with regulatory protocols for the processing of mail, but confirmed, instead, that Claimant himself knew that processing times could vary within a ten-day time frame, making the timing of his delivery of the claim for service very risky. There was no misfeasance on the part of the facility established. cf. Davidson v State of New York, supra. Additionally, while late claim relief is unavailable at this juncture, unlike a claim asserting a cause of action for bailment which must be filed within 120 days of exhaustion of administrative remedies [Court of Claims Act §10(9]) or all bets are off, a claim asserting a cause of action for assault could have been filed in this case for an entire year after accrual of the claim because Mr. Boehm timely and properly served a notice of intention to file a claim within 90 days of the incident. Claimant - who impressed the Court as a persistent and canny individual - chose not to act promptly. No explanation for such delay on his part was offered.
This procedural defect prevents resolution on the merits of what otherwise - on the substantive record presented herein - is a meritorious claim.
Only the claimant testified herein. The testimony of the claimant was credible and consistent, and is substantiated by a medical record that shows that he suffered from a broken rib as the result of an unprovoked assault by a correction officer.
Claimant testified that he arrived at Downstate on May 5, 2006, while in transit from Great Meadow Correctional Facility to Sing Sing Correctional Facility. As an inmate with Involuntary Protective Custody [IPC] status, he was held in a single holding cell across from the general population holding cell. There was no bathroom in his cell.
After asking to use the bathroom several times, and being denied his request, he knocked on the door to get further attention. He was “greeted by a sergeant who asked . . . [him] ‘why are you banging on my door?’. . . ”
[7]
Claimant explained his predicament, and was told that he would be escorted to the bathroom shortly. At approximately 5:15 p.m. a correction officer entered the holding cell, directed claimant to “get on the wall,” and claimant “complied.” Once “on the wall”, the officer started “yelling at [him] like a lunatic,” saying “why are you banging on my door” and then punching him “three times in the right rib.” When claimant fell from the blows, the officer asked: “do you still want to go to the bathroom?”
Thereafter, he was seen by medical personnel at both Downstate and at Sing Sing Correctional Facility and, ultimately - after an initial x-ray report which was interpreted as showing no broken ribs at all - an older healed fracture and a recent fracture were diagnosed. [See Exhibit 4].
At the close of claimant’s proof defendant moved to dismiss the claim based on a purported lack of any medical proof of a connection between an alleged assault on May 5, 2006 and a subsequently diagnosed fracture on June 22, 2006. Claimant argued that he continued to be in IPC status
[8]
after May 5, 2006; reaffirmed that there had been no other assault, and further argued that “no misbehavior report . . . [had] been issued showing that this broken rib occurred for any reason other than the assault I am claiming.” On this record, it does not require a medical expert to establish a causal connection between claimant’s allegation of an assault on May 5, 2006, and the diagnosis of a right rib fracture on June 22, 2006. Claimant’s unrefuted trial testimony provides the necessary causative link.
No correction officers were called to testify and perhaps rebut, if they could, the claimant’s testimony that he was the victim of an unprovoked assault on May 5, 2006 when a correction officer presumably was irritated by claimant’s request to use the bathroom. No information was offered by defendant to show that, for example, the correction officer or officers alluded to were no longer employees under the control of defendant.
Nonetheless, and based upon the failure to timely serve the claim upon the Attorney General’s Office as required, the Court is constrained to grant the defendant’s motion to dismiss, upon which decision was reserved at trial, and claim number 113664 is in all respects dismissed.
Let judgment be entered accordingly.

September 29, 2008
White Plains, New York

HON. THOMAS H. SCUCCIMARRA
Judge of the Court of Claims




[1]. All quotations are to audio recordings or trial notes unless otherwise indicated.
[2]. “. . . Service by certified mail, return receipt requested, upon the attorney general shall not be complete until the claim or notice of intention is received in the office of the attorney general . . .” Court of Claims Act §11(a)(I).
[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 subdivision a of this section, or (iii) the verification requirements as set forth in subdivision b of this section 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]. The Court found that the defects in service were caused by the facility’s misfeasance in refusing to notarize and mail the claim as claimant had requested, and as required by the regulations surrounding whether privileged correspondence needed to be sent via certified mail. Rather than consult with counsel as required by the regulation, the facility returned the claim to claimant six (6) days after he had delivered it to personnel for processing. Because late claim relief would be unavailable given the cause of action in bailment, and the misfeasance found by the Court by the failure to follow regulatory protocols, the interests of justice required that defendant be estopped from asserting the jurisdictional defense relating to improper service or filing.
[5]. 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.
[6]. 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. 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 mailroom personnel followed proper procedures in processing claimant’s legal mail.”
[7]. The defendant’s “standing objection” to hearsay was and is denied. Claimant’s testimony regarding comments made to him by correctional personnel are clearly part of the res gestae, and not offered for the truth of the matter asserted.
[8]. Therefore having limited to no contact with other inmates, and primary contact with correctional personnel. [See 7 NYCRR Part 330].