New York State Court of Claims

New York State Court of Claims

TOLAND v. R.K. WOODS, SUPERINTENDENT (UPSTATE CORRECTIONAL), JAMES J. WALSH, SUPERINTENDENT, DEPARTMENT OF CORRECTIONAL SERVICES, #2009-016-002, Claim No. 115675, Motion No. M-75429


Synopsis



Case Information

UID:
2009-016-002
Claimant(s):
CHARLES W. TOLAND
Claimant short name:
TOLAND
Footnote (claimant name) :

Defendant(s):
R.K. WOODS, SUPERINTENDENT (UPSTATE CORRECTIONAL), JAMES J. WALSH, SUPERINTENDENT, DEPARTMENT OF CORRECTIONAL SERVICES
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
115675
Motion number(s):
M-75429
Cross-motion number(s):

Judge:
Alan C. Marin
Claimant’s attorney:
Charles W. Toland, Pro Se
Defendant’s attorney:
Andrew M. Cuomo, Attorney GeneralBy: Roberto Barbosa, Esq., AAG
Third-party defendant’s attorney:

Signature date:
January 14, 2009
City:
New York
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Defendant moves to dismiss the claim of Charles W. Toland on the grounds that: (1) the claim was served by regular mail; (2) the claim was untimely served and filed; and (3) the Court lacks jurisdiction over the named defendants. In his claim, Mr. Toland alleges that a correction officer at Sullivan Correctional Facility negligently packed his typewriter, resulting in damage to it when it was shipped out for servicing. Claimant apparently learned of the damage via a September 26, 2007 letter sent to him by the typewriter servicing company. Toland made a facility claim as to the damage, which was disapproved on February 19, 2008. He thereafter appealed and the appeal was disapproved on March 26, 2008. See exhibit A to defendant’s moving papers. Section 10.9 of the Court of Claims Act (the “Act”) provides that an inmate lost property claim must be served and filed within 120 days after the inmate exhausts his administrative review - - in this case, 120 days after March 26, 2008[1], or July 24, 2008. It is undisputed that claimant did not serve and file his claim until August 11, 2008. “It is well established that compliance with sections 10 and 11 of the Court of Claims Act pertaining to the timeliness of filing and service requirements respecting claims and notices of intention to file claims constitutes a jurisdictional prerequisite to the institution and maintenance of a claim against the State, and accordingly, must be strictly construed . . .” Byrne v State of New York, 104 AD2d 782, 783, 480 NYS2d 225, 227 (2d Dept 1984), lv denied, 64 NY2d 607, 488 NYS2d 1023 (1985) (citations omitted). See also Mallory v State of New York, 196 AD2d 925, 601 NYS2d 972 (3d Dept 1993).

Nor does claimant dispute that he served his claim by regular mail. Section 11a.(i) of the Act requires either personal service or service by certified mail, return receipt requested. Regular mail is not an authorized method of service and its use is insufficient to obtain jurisdiction. See e.g. Philippe v State of New York, 248 AD2d 827, 669 NYS2d 759 (3d Dept 1998).

In view of the foregoing, the Court lacks jurisdiction over the claim of Charles W. Toland and defendant’s remaining argument need not be reached. To the extent that claimant refers in his opposition papers to a late claim, the late filing remedy of §10.6 of the Act is not available for inmate lost property claims. See, e.g., Roberts v State of New York, 11 AD3d 1000, 783 NYS2d 190 (4th Dept 2004).

Accordingly, having reviewed the submissions[2], IT IS ORDERED that motion no. M-75429 be granted and that claim no. 115675 be dismissed.




January 14, 2009
New York, New York

HON. ALAN C. MARIN
Judge of the Court of Claims




[1]. Claimant does not argue that he did not receive the denial of his appeal on March 26, 2008. He does state that on March 28, 2008, he sent a letter to the Superintendent requesting that the decision on the appeal be reconsidered, which letter has gone unanswered. Claimant has submitted no authority to suggest that there is any further administrative review procedure beyond the appeal. The denial of the appeal specifically states that “[a] claim may be filed in the NYS Court of Claims. Your claim must be filed and served within 120 days of the date of this final determination, as required by law.” See exhibit A to defendant’s moving papers.
  1. [2]The following were reviewed: defendant’s notice of motion with affirmation in support and exhibits A through C; and claimant’s “Affidavit in Response.”