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
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 §
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.