New York State Court of Claims

New York State Court of Claims

SIMPSON v. THE STATE OF NEW YORK, #2008-030-558, Claim No. 115597, Motion No. M-75361


Synopsis


Bailment claim by inmate claimant proceeding pro se dismissed on pre-answer motion. Since defendant did not reject and return either unverified notice of intention or unverified claim, not dismissed on that ground. Claimant failed to establish that he served the claim by certified mail, return receipt requested, or that he lacked access to sufficient funds to accomplish same because of errors in the facility, as opposed to his own failure to request proper service in the first instance.

Case Information

UID:
2008-030-558
Claimant(s):
THEODORE SIMPSON
Claimant short name:
SIMPSON
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
115597
Motion number(s):
M-75361
Cross-motion number(s):

Judge:
THOMAS H. SCUCCIMARRA
Claimant’s attorney:
THEODORE SIMPSON, 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:
September 15, 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

3,4 Response to Motion filed by Defendant by Theodore Simpson, Claimant, “Affirmation” in Support of Objections to Motion to Dismiss by Theodore Simpson, Claimant

  1. Filed Papers: Claim
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 Haven].

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[1], nor 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).[2] Failure to serve the claim at all results in a lack of subject matter jurisdiction that is not waiveable.

“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) affg 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).[3]

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, 2001).[4]

Here, the claimant has not been able to establish that he served the claim[5] 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.


September 15, 2008
White Plains, New York

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




[1]. In the affidavit of service the claimant writes that he has mailed the following documents: “Order to Show Cause, Affidavit in Support of Order to Show Cause, Affidavit in Support of Requests for Reduced Filing Fees, Petition, Verification, Affidavit in Support of Petition, and Affidavit of Service . . .”
[2]. “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) 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.”
[3]. “To the extent that a defect in verification renders a claim subject to dismissal, it is required that the defendant must (1) reject the claim in the manner specified in CPLR 3022, . . . (footnote omitted) and (2) assert the defect either in the answer or by a pre-answer motion to dismiss, as required by section 11(c) of the Court of Claims Act. If the defendant does not do both, any objection to a defect in verification has been waived . . .”
[4]. 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.

[5]. 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), see 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 York, 17 AD3d 1069 (4th Dept 2005).