New York State Court of Claims

New York State Court of Claims

DE LA CRUZ v. THE STATE OF NEW YORK, #2008-030-544, Claim No. 115214, Motion No. M-74967


Synopsis


Pre-answer motion to dismiss denied. In response to motion, inmate claimant furnished proof of re-service of his slip and fall negligence claim by filing with the Clerk a certified mail receipt attesting to receipt by defendant, and has therefore established, at least for these preliminary purposes and in the absence of any rebuttal by defendant, that he has served his claim by certified mail, return receipt requested within two (2) years of its accrual as required when a notice of intention has been timely and properly served.

Case Information

UID:
2008-030-544
Claimant(s):
ANGEL DE LA CRUZ
Claimant short name:
DE LA CRUZ
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
115214
Motion number(s):
M-74967
Cross-motion number(s):

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

Signature date:
July 17, 2008
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

The following papers were read and considered on defendant’s 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. Affidavit by Angel De La Cruz, Claimant
4,5 Letter to Court from Angel De La Cruz, Claimant dated May 24, 2008; Letter to Claimant from Court dated June 4, 2008 granting adjournment of motion return date to July 16, 2008

  1. Letter to Court dated July 2, 2008 along with a photocopy of a certified mail receipt received by Clerk on July 7, 2008
  1. Filed Paper: Claim Angel De La Cruz, an inmate proceeding pro se, alleges in his claim that he slipped, fell and suffered injury in the west-side yard shower area at Green Haven Correctional Facility on July 25, 2006 because of the defendant’s negligent failure to maintain the area in a safe and proper condition, among other things. A notice of intention to file a claim was served on the Office of the Attorney General on August 23, 2006 by certified mail, return receipt requested. [Affirmation in Support of Motion to Dismiss by Jeane L. Strickland Smith, Assistant Attorney General, ¶3, Exhibit A]. The claim itself was served on the Attorney General’s Office by regular mail on April 18, 2008. [Ibid. ¶4, Exhibit B].
In this pre-answer motion to dismiss [see Court of Claims Act §11(c)], defendant moves for dismissal of the claim premised on claimant’s failure to properly serve the claim either personally, or by certified mail, return receipt requested, resulting in a lack of personal jurisdiction. Court of Claims Act §11(a)(i).

Claimant acknowledges the claim must have been sent regular mail, but indicates that he did not know that the claim had been sent by regular mail until he received the present motion to dismiss, having instructed the mail room otherwise. [Affidavit by Angel De La Cruz, ¶¶3-5]. He writes:
“I was informed by an inmate law clerk that the current procedure at Green Haven Correctional Facility regarding the certified mailing . . . [ procedure] was to package my mail and to attach to the . . . [envelope] a note stating that I wish to mail legal work out by certified mail, return receipt requested . . . When I completed my claim I placed it inside of a . . . [manila] envelope, sealed it, attached a ‘post-it’ note to the front of it that stated ‘Please mail certified, return receipt requested’, I also attached a facility disbursement form and left the dollar amount blank so that the facility’s business office could charge me the appropriate postage fee . . . [T]he policy at the Green Haven Correctional Facility regarding mailing papers out certified is the same. There are absolutely no certified mail receipts in the inmate law library . . . [Having timely and properly served a notice of intention to file a claim] As of the date of this affidavit, I still have one month and 25 days before the expiration of the statute of limitations. Therefore, I should be allowed to re-serve Defendant by certified mail, return receipt requested . . . (citations omitted).” [Ibid. ¶¶ 3-7].


The claimant’s affidavit is sworn to on May 30, 2008. [Ibid.]. In a letter to the court dated May 24, 2008 that was received on or about June 5, 2008, claimant indicated that he had since re-mailed the claim by certified mail, return receipt requested, and asked for an adjournment of the return date of the motion in order to furnish a copy of the return receipt for certified mail. He stated he had been waiting for such receipt since he had mailed the claim ten (10) days earlier. The court granted the request for an adjournment, and thereafter, a photocopy of a certified mail receipt showing service of an article on the Attorney General’s Office on June 4, 2008 was received in chambers on July 11, 2008.

As noted, the defendant acknowledges timely receipt of a properly served notice of intention to file a claim on August 23, 2006. [Affirmation in Support of Motion to Dismiss by Jeane L. Strickland Smith, Assistant Attorney General, ¶3, Exhibit A]. No affidavit by someone with knowledge is presented to rebut claimant’s allegations that the certified mail receipts are unavailable to inmates, and that the method for securing such mail service is available only as he describes it. More significantly, however, claimant has furnished proof of service of his claim by filing with the Clerk a copy of a certified mail receipt attesting to receipt by defendant on June 4, 2008. He has therefore established, at least for these preliminary purposes and in the absence of any rebuttal by defendant, that he has served his claim by certified mail, return receipt requested within two (2) years of its accrual as required. See Court of Claims Act §10(3).

Accordingly, the defendant’s motion to dismiss the claim [M-74967] is in all respects denied as moot.

July 17, 2008
White Plains, New York

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