Theodore Simpson alleges in his claim that on or about April 23, 2008
defendant’s agents lost or damaged his property during his placement in
the special housing unit [SHU] at Green Haven Correctional Facility [Green
A notice of intention to file a claim was served on the Attorney
General’s Office via regular mail on May 30, 2008, and a claim was served
on the Attorney General’s Office via regular mail on July 28, 2008.
[Affirmation in Support of Motion to Dismiss by Jeane L. Strickland Smith,
Assistant Attorney General, ¶¶3 and 4, Exhibits A and B]. The claim
is file-stamped in the Office of the Chief Clerk of the Court of Claims on July
28, 2008. The affidavit of service attached to the filed claim indicates that a
list of documents was mailed to the Attorney General’s Office, but does
not specify that the claim was mailed
does it specify that the claim was mailed by certified mail, return receipt
requested as required. It is noted that the claim filed with the Court of Claims
is typewritten, and the claim received by the Attorney General’s Office is
handwritten, although the text is exactly the same. [See ibid
. Exhibit B,
and Claim Number 115597 filed July 28, 2008].
Defendant now moves to dismiss the claim based upon a lack of jurisdiction,
stating that the notice of intention to file a claim, and the claim itself, were
served only by regular mail, and that neither document was properly verified.
Claimant argues that the claim filed with the court is properly verified,
although the claim served on the defendant is not; and indicates that financial
constraints forced him to utilize regular mail to serve both the notice of
intention and the claim.
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 serve the claim during the
time period and in the manner 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).
Failure to serve the
claim at all results in a lack of subject matter jurisdiction that is not
“Verification” is defined in the Civil Practice Law and Rules as
“. . . a statement under oath that the pleading is true to the knowledge
of the deponent, except as to matters alleged on information and belief, and
that as to those matters he believes it to be true . . . ” § 3020 (a)
Civil Practice Law and Rules. Further, “. . . [t]he verification of a
pleading shall be made by the affidavit of the party . . . ” Civil
Practice Law and Rules §3020(d). Only certain individuals may affirm the
truth of statements in lieu of swearing to their truth before one empowered to
take oaths [see Civil Practice Law and Rules § 2106].
“. . . [A] claim and notice of intention to file a claim shall be
verified in the same manner as a complaint in an action in the supreme
court.” Court of Claims Act §11(b). The Civil Practice Law and Rules
“verification requirement” requires that the recipient of an
unverified pleading who “elects” to treat it as a nullity give
notice of his intentions to the adverse party with due diligence. Civil Practice
Law and Rules §3022.
Here, although the notice of intention served on defendant contains
claimant’s own signature, and the expected verification language, it does
not contain a notary’s stamp and signature. [Affirmation in Support of
Motion to Dismiss by Jeane L. Strickland Smith, Assistant Attorney General,
Exhibit A]. Similarly, the claim served on the defendant does not contain the
language of verification or a notary’s attestation and signature, but does
contain claimant’s signature. [Ibid
. Exhibit B]. All of which is
academic, since defendant did not reject and return either the notice of
intention or the claim with due diligence as part of the first step, of the
required two step process. Lepkowski v State of New York
, 1 NY3d 201, 209
n 5, 210 (2003); Scott v State of New York
, 46 AD3d 664 (2d Dept 2007)
18 Misc 3d 455 (Ct Cl 2006), see also Rister v City
University of NewYork
, UID # 2008-014-011, Claim No. 113519, Motion No.
M-73902 (Nadel, J., April 11, 2008).
With regard to the failure to utilize the proper manner of service in serving
the claim upon the Attorney General’s Office as required, the claimant has
the burden of establishing proper service by a preponderance of the evidence and
has failed to do so here. He indicates only that he did not have sufficient
funds in his inmate account to request service by the proper means, but does not
provide any proof of that circumstance beyond his own “self-serving
statement.” White v State of New York
, UID # 2008-009-005, Claim
No. 114463, Motion No. M-74325 (Midey, J., January 29, 2008); see also
Chatin v State of New York
, UID # 2001-013-023, Claim No. 98835,
Motion No. M-63664 (Patti, J., October,
Here, the claimant has not been able to establish that he served the
upon the Attorney General’s Office
either personally, or by certified mail, return receipt requested. Court of
Claims Act §11(a). The defendant has raised this issue in a timely motion.
Court of Claims Act §11(c).
Accordingly, defendant’s motion to dismiss is granted, and claim number
115597 is hereby in all respects dismissed.
. Discussing 7 NYCRR § 721.3 and the
manner of obtaining advancements for payment of postage for privileged
correspondence including legal mail, and mail requiring special handling
services by statute, such as service of a notice of intention or a claim in the
Court of Claims.
. With a bailment cause of action, a claimant
must serve and file his claim within one hundred twenty (120) days of exhaustion
of the personal property claims administrative remedy available through the New
York State Department of Correctional Services. Court of Claims Act §10(9),
7 NYCRR Part 1700. “. . . 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
, 40 AD3d 1198, 1199
(3d Dept 2007). No late claim application pursuant to Court of Claims Act
§10(6) is allowed for a bailment cause of action either. Roberts v State
of New York
, 11 AD3d 1000 (4th Dept 2004); Blanche v State of New
, 17 AD3d 1069 (4th Dept 2005).