New York State Court of Claims

New York State Court of Claims

McTIER v. THE STATE OF NEW YORK, #2008-030-511, Claim No. 114694, Motion No. M-74504


Synopsis


State’s pre-answer motion to dismiss bailment claim granted. Claim served regular mail, although a notice of intention was served by certified mail, return receipt requested. Service of notice of intention did not extend time within which to serve and file claim asserting cause of action for bailment

Case Information

UID:
2008-030-511
Claimant(s):
JOSIAH McTIER
Claimant short name:
McTIER
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
114694
Motion number(s):
M-74504
Cross-motion number(s):

Judge:
THOMAS H. SCUCCIMARRA
Claimant’s attorney:
JOSIAH McTIER, PRO SE
Defendant’s attorney:
HON. ANDREW M. CUOMO, NEW YORK STATE ATTORNEY GENERAL
BY: JEANE L. STRICKLAND SMITH, ASSISTANT ATTORNEY GENERAL
Third-party defendant’s attorney:

Signature date:
March 6, 2008
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)

.
Decision

The following papers were read and considered on defendant’s pre-answer motion to


dismiss:

1,2 Notice of Motion; Affirmation in Support of Motion to Dismiss by Jeane L. Strickland Smith, Assistant Attorney General and attached exhibits

  1. Filed paper: Claim
No Opposition

Josiah McTier alleges in his claim that defendant’s agents at Green Haven Correctional Facility negligently or intentionally lost or destroyed his personal property while he was incarcerated there. He asserts a date of accrual in his claim of August 10, 2007, when he returned to the facility “after two years and three months of being at court . . . ” [See Claim Number 114694,¶ ¶ 2- 4]. He indicates in his claim that it was being served within 120 days of exhaustion of his administrative remedies and seeks damages in the amount of $119.50.

A notice of intention to file a claim was served upon the Office of the Attorney General on December 14, 2007, by certified mail, return receipt requested. [Affirmation in Support of Motion to Dismiss by Jeane L. Strickland Smith, Assistant Attorney General, ¶3, Exhibit A]. A claim was received in the Attorney General’s Office via regular mail on January 11, 2008. [Ibid. ¶4, Exhibit B].

In this pre-answer motion to dismiss, the defendant argues that the claim was both untimely, in that it was served more than one hundred twenty (120) days after exhaustion of his administrative remedies, and served improperly, in that it was served by regular mail, rather than personally, or by certified mail, return receipt requested as required. See Court of Claims Act §§10(9) and 11(a). Since the resulting lack of personal jurisdiction has been appropriately raised by motion, the defense is not waived, and the claim should be dismissed. See Court of Claims Act §11(c). Additionally, defendant argues that the claim fails to satisfy the pleading requirements of Court of Claims Act §11(b). The statute provides that “[t]he claim shall state the time when and place where such claim arose, the nature of same,[and] the items of damage or injuries claimed to have been sustained . . . ” Court of Claims Act §11(b). Defendant notes that the claim does not identify or describe any lost items.

No opposition has been filed, although the motion papers appear to have been duly served upon the claimant.

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). A failure to timely and properly serve the claim as 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).[1] Failure to serve the claim at all results in a lack of subject matter jurisdiction that is not waiveable.

The Claimant has the burden of establishing proper service [Boudreau v Ivanov, 154 AD2d 638, 639 (2d Dept 1989)] by a preponderance of the evidence. See Maldonado v County of Suffolk, 229 AD2d 376 (2d Dept 1996). 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).

It is noted too that because this is a claim ostensibly asserting a cause of action for bailment, service of a notice of intention to file a claim does not operate to extend the time within which to serve and file the claim itself, and, in any event, only service of a claim within one hundred twenty (120) days of exhaustion of administrative remedies is provided for in the statute; not service of a notice of intention. See Court of Claims Act §10(9); see Pristell v State of New York, 40 AD3d 1198 (3d Dept 2007). Indeed, “. . . Court of Claims Act § 10 (9) expressly requires an inmate seeking to recover damages for lost personal property to file a claim within 120 days following the exhaustion of available administrative remedies . . . (citation omitted). Significantly, unlike Court of Claims Act § 10 (2), (3), (3-a), (3-b) and (4), there is no provision in Court of Claims Act § 10 (9) which allows for service of a notice of intention to file a claim as a means of extending the time that a claim may be served or filed.” Pristell v State of New York, supra, at 1198-1199.

Defendant’s motion to dismiss the claim based upon its improper and untimely service is hereby granted. The court does not reach defendant’s further arguments concerning a failure to state the “nature of the claim” in the pleading in terms of the adequacy of the description. See Court of Claims Act §11(b). Claimant failed to obtain personal jurisdiction over the defendant as required, by failing to timely serve the claim either personally, or by certified mail, return receipt requested. Claim number 114694 is in all respects dismissed.


March 6, 2008
White Plains, New York

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




[1]. “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) with 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.”