“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
ORDERED, that Cross-Motion No. CM-76692 is hereby GRANTED; and it is
ORDERED, that Claim No. 114695 is hereby DISMISSED.