New York State Court of Claims

New York State Court of Claims

OCHOA v. THE STATE OF NEW YORK, #2009-009-027, Claim No. 114695, Motion Nos. M-76633, CM-76692


Synopsis


Defendant’s motion to dismiss the claim based upon improper service was granted, and claimant’s motion for summary judgment was denied as moot.

Case Information

UID:
2009-009-027
Claimant(s):
ERNESTO OCHOA
1 1.
The Court, sua sponte, has amended the caption to reflect the State of New York as the only proper defendant before this Court.
Claimant short name:
OCHOA
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :
The Court, sua sponte, has amended the caption to reflect the State of New York as the only proper defendant before this Court.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
114695
Motion number(s):
M-76633
Cross-motion number(s):
CM-76692
Judge:
NICHOLAS V. MIDEY JR.
Claimant’s attorney:
ERNESTO OCHOA, Pro Se
Defendant’s attorney:
HON. ANDREW M. CUOMO
Attorney General
BY: G. Lawrence Dillon, Esq.,
Assistant Attorney GeneralOf Counsel.
Third-party defendant’s attorney:

Signature date:
September 21, 2009
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant has brought a motion (M-76633) for an order granting him summary judgment on this claim. Defendant has responded with a cross-motion (CM-76692) seeking an order dismissing this claim based upon improper and untimely service.

The following papers were considered by the Court in connection with these motions:
Notice of Motion, Affidavit in Support, with Attachments 1,2


Cross-Notice of Motion, Affirmation, with Exhibits 3,4

“Answer” (Reply) to Cross-Motion, with Exhibits 5


Filed Papers: Claim, Answer.

In this filed claim, claimant seeks damages in the amount of $5,000.00 for the loss of certain items of personal property which allegedly occurred when claimant, an inmate under the care and custody of the New York State Department of Correctional Services, was transferred from Mid-State Correctional Facility to Wallkill Correctional Facility on or about August 6, 2007. In his claim, claimant seeks damages for the loss of specific items of personal property, as well as damages representing the sentimental value of certain photographs of claimant’s deceased mother.

In his motion for summary judgment, claimant contends that there are no issues of fact in dispute, and that the defendant has no defense to this claim. On the other hand, in its cross-motion defendant contends that the claim was both improperly and untimely served and therefore should be dismissed by this Court.

Since defendant’s cross-motion is potentially dispositive of this claim, it will be addressed first by this Court.

Court of Claims Act § 11(a) requires that a claim must be served upon the Attorney General either personally or by certified mail, return receipt requested. In this particular matter, defendant contends that the claim was served upon the Attorney General by regular, first class mail, and not by certified mail, return receipt requested, as required by statute. In support of this contention, defendant’s attorney has attached a copy of the envelope from claimant in which the claim was mailed (Exhibit B to Items 3,4). This envelope contains a postmark dated January 9, 2008 and has postage affixed of $.58. There are no markings on this envelope to indicate that it was mailed by certified mail, return receipt requested, and the postage ($.58) is clearly insufficient for such services. Based upon this submission, the Court finds that claimant failed to achieve proper service of his claim upon the Attorney General as specifically required by statute.

The provisions relating to the manner of service and filing are jurisdictional prerequisites to the maintenance of a claim, and as such must be strictly construed (Greenspan Bros. v State of New York, 122 AD2d 249; Phillips v State of New York, 237 AD2d 590). As a result, this Court does not have the authority to cure or overlook defects in the manner of service, and failure to serve by certified mail, return receipt requested, must result in dismissal of the claim (Philippe v State of New York, 248 AD2d 827; Hodge v State of New York, 158 Misc 2d 438, affd 213 AD2d 766).

Additionally, since this claim sounds in bailment, it is governed by § 10(9) of the Court of Claims Act. This statute provides that any claim alleging the loss of personal property by an inmate is not permitted to be filed “unless and until the inmate has exhausted the personal property claims administrative remedy”. The statute further requires that any such claim “must be filed and served within 120 days after the date on which the inmate has exhausted such remedy.” In this particular matter, defendant has established to the satisfaction of this Court that a Final Administrative Claim Determination was made on January 22, 2008 (Exhibit C to Items 3,4). Accordingly, the last day for timely and proper service of a claim relating to the alleged loss of personal property was May 21, 2008. Since claimant has failed to properly serve his claim within this time period, and since the late claim provisions of § 10(6) of the Court of Claims Act are inapplicable to inmate bailment claims (Roberts v State of New York, 11 AD3d 1000), claimant has no further remedies available to him in this Court.

Finally, since this claim must be dismissed for improper service, claimant’s motion for summary judgment is hereby rendered moot.

Based upon the foregoing, it is

ORDERED, that Motion No. M-76633 is hereby DENIED, as moot; and it is further

ORDERED, that Cross-Motion No. CM-76692 is hereby GRANTED; and it is further

ORDERED, that Claim No. 114695 is hereby DISMISSED.


September 21, 2009
Syracuse, New York

HON. NICHOLAS V. MIDEY JR.
Judge of the Court of Claims