New York State Court of Claims

New York State Court of Claims

HICKEY v. THE STATE OF NEW YORK, #2008-044-587, Claim No. 115147, Motion No. M-75256


Court granted defendant’s motion to dismiss claim for improper service 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:
October 28, 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, as a result of a disciplinary sanction, he was transferred to a Special Housing Unit (SHU) at Elmira Correctional Facility (Elmira) in November 2007. Defendant answered and asserted various affirmative defenses. Defendant now moves to dismiss the claim on the ground that it was improperly served on the Office of the Attorney General by regular mail, rather than by personal service or by certified mail, return receipt requested. Claimant opposes the motion.

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. Further, 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.

Claimant alleges that he filed an inmate claim on December 26, 2007 which was denied on February 13, 2008. Claimant appealed the denial, and that appeal was denied on March 10, 2008. Thus, this claim was timely filed on April 21, 2008.[1] The claim, received in the Attorney General’s Office on April 23, 2008, on its face also appears to have been timely served.[2] However, the envelope addressed to the Attorney General (postmarked April 22, 2008) and submitted as a exhibit to defendant’s motion, contains postage of $1.82, which is clearly insufficient for 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.

Conversely, claimant contends that he was prevented from serving the Attorney General by certified mail, return receipt requested because of his placement in SHU and his indigent status. Claimant apparently submitted a request to mail the claim by certified mail, return receipt requested. Nevertheless, the facility denied the request by memorandum dated April 17, 2008 (the Memo), and returned the claim to claimant.

DOCS Directive 4421 (see also 7 NYCRR 721.3 [a] [3] [iv-vi]) provides in pertinent part:
(iv) To ensure that indigent inmates maintain their right of access to the courts, the facility shall approve an IAS 2708 advance request to pay for first class mail postage if the inmate has insufficient funds and if the following conditions are met:

(a) the mail is legal mail (e.g. it is addressed to a judge, clerk of court, attorney, or authorized legal representative; or is directly related to a potential or ongoing legal matter);

(b) any balance of the inmate's free weekly postage allowance is applied to the legal mail postage costs; and,

(c) the requested advance and the balance of unpaid previous advances for legal mail postage do not exceed $20.00, except as may be approved under subparagraph (vi) below.

(v) Advances for “special handling” (e.g. certified mail, return receipt, express mail, etc.) will not be approved unless required by statute, court rule or court order.

(vi) Exceeding the $20.00 limit shall only be approved if the inmate can show by court rule, court order, a statute of limitations, or other legal deadline applicable to his or her individual circumstance that the legal mail must be sent prior to receipt of the next week’s free postage allowance. The inmate must provide justification for such advance.

The Memo advised claimant that he was at his $20 limit in advancement and contained the notation: “Copy from the Courts / must be shown.” Notwithstanding his alleged submission of a copy of Court of Claims Act § 11 to facility officials, claimant would also have had to prove that his particular circumstances necessitated sending the claim prior to the next week’s allowance of postage. Claimant obviously could not do that, as the 120-day filing requirement set forth above would not have expired until July 8, 2008.

Claimant’s assertion that defendant failed to follow his instructions regarding the method of mailing the claim and should therefore be estopped from raising improper service as a defense is without merit. Defendant’s directive clearly prohibits advancing postage to claimant under those circumstances. Moreover, claimant had until late June 2008 either to accumulate the necessary postage or, the week prior to the statutory deadline, to provide proof that the postage should be advanced despite having already been advanced $20.[3]

Claimant’s failure to comply with the statutory certified mail requirement mandates dismissal, as the Court lacks subject matter jurisdiction (see Finnerty v New York State Thruway Auth., 75 NY2d 721 [1989]). Consequently, defendant’s motion is granted and Claim No. 115147 is hereby dismissed.[4]

October 28, 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 July 21, 2008; Affirmation of Roberto Barbosa, Assistant Attorney General, dated July 18, 2008, and attached Exhibits A through F.

2) Notice of Motion filed on August 13, 2008; Unsworn Affidavit in Opposition of Philip J. Hickey, dated August 11, 2008.

Filed papers: Claim filed on April 21, 2008; Verified Answer filed on May 21, 2008.

[1]. Defendant’s alternate argument that the claim was not filed within 120 days of its accrual is clearly without merit.
[2]. In an undated and unverified “affidavit” of service, claimant states that he mailed the claim by certified mail, return receipt requested. However, he does not indicate the date of mailing.
[3]. The Memo indicates that claimant’s advancement balance was $18.11 at the time he sought to mail the claim, and the required postage would have caused him to exceed the $20 limit.
[4]. Claimant apparently served the Attorney General’s Office with a notice of intention on April 10, 2008. As defendant correctly notes, 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 file and serve the claim (Court of Claims Act § 10 [9]; see Pristell v State of New York, 40 AD3d 1198 [2007]). Accordingly, a claim filed and served after July 8, 2008 would be untimely.