New York State Court of Claims

New York State Court of Claims

WILSON v. THE STATE OF NEW YORK, #2008-044-556, Claim No. 115005, Motion No. M-74822


Defendant’s pre-answer motion to dismiss granted based upon improper service of the claim by regular mail.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant’s attorney:
Defendant’s attorney:
HON. ANDREW M. CUOMO, ATTORNEY GENERALBY: Roberto Barbosa, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
June 19, 2008

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant, an inmate proceeding pro se, alleges that defendant State of New York (defendant) negligently lost certain personal property belonging to him when he was transferred from Elmira Correctional Facility (Elmira) to Green Haven Correctional Facility (Green Haven) in March 2007. In lieu of answering, defendant moves to dismiss on the grounds of improper and untimely service.[1] Claimant has submitted a letter dated April 18, 2008 “in lieu of a formal memorandum of law.” In that letter, claimant also requests an extension of time in which to “counter these affirmative defenses” – noting that “the evidence sought to defeat a default lies in the internal operation of the Department of Correctional Services . . . at Green Haven record access officer, and requires a sufficient amount of time to ascertain these records in its stead.” The Court finds no basis for an adjournment, and claimant’s request is denied. The Court will now address the motion on the merits.

Pursuant to Court of Claims Act § 10 (9), claimant was required to serve and file a claim within 120 days after exhaustion of his personal property claim administrative remedy. Claimant alleges that he filed an inmate claim on August 18, 2007 which was denied on October 10, 2007. Claimant alleges that he appealed the denial on October 11, 2007, and the appeal was denied on October 15, 2007.[2] Defendant argues that because claimant’s administrative appeal was denied on October 15, 2007, this claim filed on March 21, 2008 and served on March 20, 2008 is untimely.[3]

In this claim, claimant requests $1,400 for the value of his property. Claimant does not provide any further description of the property, but has attached the first page of three different inmate claim forms. Claimant also attached correspondence from various officials at Elmira, Green Haven and Great Meadow Correctional Facility, as well as a portion of a grievance he filed, all of which concern the missing personal property. However, rather than clarifying this matter, these attachments have created additional confusion.

An inmate claim dated August 15, 2007 (the first inmate claim) seeks recovery for the loss of four draft bags of property ($1,410), and a K.T.V. ($90).[4] The inmate claim dated October 5, 2007 (080-9913-07) (the second inmate claim) seeks recovery for a Casio CTK - 900 keyboard ($140.93) and an AC adapter ($12.97).[5] A third inmate claim which is dated January 14, 2008 (the third inmate claim) seeks recovery for two draft bags of property ($500), one K.T.V. ($90), and one Casio keyboard ($200).

Although the amount claimed in the first inmate claim ($1,410) for the four draft bags is extremely close to the value sought in this claim ($1,400), the dates alleged as the inmate claim decision and the appeal decision coincide with the determination dates of the second inmate claim. Accordingly, it is unclear which inmate claim actually forms the basis for the relief sought in this claim. Further, neither claimant nor defendant has submitted complete copies of the inmate claims, and it is therefore impossible for the Court to determine whether or when claimant exhausted his administrative remedies. Based upon the allegations in Claim No. 115005 and the attachments thereto, the Court cannot determine whether this claim has been timely filed or served. Because defendant has not established untimeliness on this motion, dismissal on that basis is not warranted.

However, Court of Claims Act § 11 (a) requires that service on the Attorney General's office be made either personally, or by certified mail, return receipt requested. Defendant argues that claimant’s failure to serve the claim by certified mail, return receipt requested, renders this Court without jurisdiction. The envelope addressed to the Attorney General (postmarked March 18, 2008) and submitted as an exhibit to defendant’s motion, contains postage of $1.99, which is clearly insufficient for certified mail, return receipt requested.

Claimant’s failure to comply with the statutory certified mail requirement mandates dismissal, as the Court has no subject matter jurisdiction (see Finnerty v New York State Thruway Auth., 75 NY2d 721 [1989]). Consequently, defendant’s Motion No. M-74822 is granted and Claim No. 115005 is hereby dismissed.

June 19, 2008
Binghamton, New York

Judge of the Court of Claims

The following papers were read on defendant’s motion:

1) Notice of Motion filed on April 16, 2008; Affirmation of Roberto Barbosa, Assistant Attorney General, dated April 14, 2008, and attached Exhibit A.

2) Claimant’s letter to the Clerk of the Court dated April 18, 2008.

Filed papers: Claim filed on March 21, 2008.

[1]. Claimant alleges that he filed a “notice of intent on or about June 6, 2007, within the 90 [day] statute of limitation [sic].” The Court notes that because claimant is asserting a cause of action for bailment, his alleged service of a notice of intention to file a claim does not extend the time within which he is required to serve and file the claim itself (Court of Claims Act § 10[9]; see Pristell v State of New York, 40 AD3d 1198 [2007]).
[2]. However, claimant also alleges that he was informed that his property couldn’t be located on October 16, 2007, and that the inmate claim he filed on August 18, 2007 was in the amount of $1,400.
[3]. Defendant contends that claimant was therefore required to file and serve a claim “no later than February 13, 2008.” In actuality, February 12, 2008 was the 120th day after October 15, 2007.
[4].Based on additional documentation attached to the claim, it appears that prior to the time of his transfer to Green Haven, claimant transferred ownership of the K.T.V. to a fellow inmate.
[5]. Notably, a memorandum dated February 25, 2008 from Claims Officer D. Smith indicates that the second inmate claim (080-9913-07) was denied on October 10, 2007, and the appeal was denied October 15, 2007. Smith also advised claimant that he had 120 days from the disapproved appeal to file with the Court of Claims.