New York State Court of Claims

New York State Court of Claims

SCOTT v. STATE OF NEW YORK, #2009-018-020, Claim No. 115871, Motion No. M-75761


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:
Attorney General of the State of New York
By: Thomas M. Trace, Esquire Senior Attorney
Third-party defendant’s attorney:

Signature date:
March 24, 2009

Official citation:

Appellate results:

See also (multicaptioned case)


Defendant brings a motion to dismiss the claim for lack of personal and subject matter

jurisdiction. Claimant opposes the motion.

Defendant asserts that Claimant served a claim by regular mail on September 22, 2008. The envelope in which the claim was received bears only $1.17 postage and bears no other markings reflecting that the envelope was sent certified mail, return receipt requested.[1] Defendant argues that this was an improper method of service which requires dismissal of the claim.

Claimant, in opposition to the motion, argues that a notice of intention was served by certified mail, return receipt requested and that this gave the Court jurisdiction. However, even when a notice of intention was timely and properly served upon the Attorney General, a claim must be properly served in order to commence an action in the Court of Claims.

The Court of Claims Act § 11 (a)(i) states in relevant part that “[t]he claim shall be filed with the clerk of the court...[and] a copy shall be served upon the attorney general within the times hereinbefore provided for filing with the clerk of the court either personally or by certified mail, return receipt requested...” It is well established that the requirements for service upon the Attorney General are jurisdictional and must be strictly construed (Byrne v State of New York, 104 AD2d 782, 783, lv denied 64 NY2d 607). Service by a method other than personal service or certified mail, return receipt requested is not service sufficient to commence an action in this Court (Hodge v State of New York, 158 Misc 2d 438, affd 213 AD2d 766). The Court does not have the discretion to disregard a defect in service. Therefore, the Court lacks jurisdiction to hear this improperly served claim.

Despite improper service of the claim in this matter, it appears Claimant could cure the defect, if as it appears, he properly served a notice of intention (Court of Claims Act § 10[3]). However, in this case, the Court’s lack of jurisdiction goes beyond merely the issue of service.

The claim seeks $10,000 in damages because the supervisor of the Riverview Correctional Facility Inmate Grievance Program did not give Claimant’s grievance a code and title and instead returned it to Claimant to revise his description of the problem because the supervisor alleged that Claimant was using the grievance program as an avenue to use inappropriate language and slanderous inferences regarding staff.[2] Claimant alleges that the supervisor’s actions, in failing to assign a grievance code to Claimant’s grievance, violated 7 NYCRR § 701.5(a)(2), and he was denied the opportunity to address and resolve his grievance in accordance with Correction Law § 139, 7 NYCRR § 701.1(a) and Directive 4040,

§ 701.1(a). Defendant argues that the Court lacks the jurisdiction to review the actions of the Inmate Grievance Resolution Committee.

Claimant takes issue not with the substance of his grievance but with the refusal to process his grievance in accordance with the applicable regulations. Claimant has commenced an Article 78 proceeding for mandamus compelling the Riverview Correctional Facility Inmate Grievance Committee to accept his grievance, and assign it a grievance code and title in accordance with 7 NYCRR § 701.5(a)(2). This is the appropriate course of action, as this Court lacks the jurisdiction to review “...any irregularity which may have occurred in processing the inmate’s grievance.” (Jackson v State of New York, Ct Cl, Collins, J., signed November 5, 2001, Claim No. 104689, M-63928, M-63952 [UID # 2001-015-198]).

Based upon the foregoing, the defendant’s motion is GRANTED and the claim is hereby DISMISSED, with prejudice.

March 24, 2009
Syracuse, New York

Judge of the Court of Claims

The Court has considered the following documents in deciding this motion:

1. Notice of Motion.

2. Affirmation of Thomas M. Trace, Esquire, Senior Attorney, in support, with exhibits attached thereto.

3. Reply Affidavit of Robert Scott, in opposition, sworn to October 23, 2008, with exhibits attached thereto.

[1].See Defendant’s Exhibit B.
[2].Claim, Inmate Grievance Program Supervisor’s Memorandum to Claimant dated August 26, 2008.