New York State Court of Claims

New York State Court of Claims

BROOKS v. THE STATE OF NEW YORK, #2009-032-125, Claim No. 114000, Motion Nos. M-75615, M-76006


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):
M-75615, M-76006
Cross-motion number(s):

Claimant’s attorney:
Troy Brooks, Pro Se
Defendant’s attorney:
Hon. Andrew M. Cuomo, NYS Attorney GeneralBy: Carol A. Cocchiola, Assistant Attorney General, Of Counsel
Third-party defendant’s attorney:

Signature date:
June 12, 2009

Official citation:

Appellate results:

See also (multicaptioned case)


This claim is based on allegations that certain personal property belonging to claimant, including magazines, bags of peppermints, and stamps, were lost during his incarceration at Southport Correctional Facility. The claim was filed on July 25, 2007. An amended claim, which added Postal Services as a defendant, was filed on March 10, 2008. Thereafter, on October 1, 2008, claimant filed a motion (M-75615) to further amend his claim to include Fox Magazines Publications as a defendant. After reviewing said motion and Defendant’s Affirmation in Opposition, which alleges that the State of New York has not been served with the claim or amended claim, this Court issued an Order to Show Cause (M-76006), signed December 16, 2008, directing the parties to submit papers regarding whether service of the claim on defendant was ever effected.

In response to the Court’s Order to Show Cause (M-76006), Defendant submitted the Affidavits of Lenore Perrott and Janet A. Barringer, Senior Clerks in the Albany Office of the Attorney General of the State of New York, which indicate that the Attorney General was never served with the Claim in this matter. Claimant’s response to the Court’s Order to Show Cause states that he “filed” a Notice of Intent to File A Claim and a Claim upon the Court by certified mail, return receipt, and indicates that the Attorney General was served with the same by regular mail. He attaches proof of his certified mail, return receipt, of the Notice of Intention and Claim upon the Court and an Affidavit of Service of the Amended Claim upon the Court. He does not attach proof of service of the documents upon the Attorney General. Nevertheless, even if claimant had provided proof of service of the documents by regular mail, it is insufficient to satisfy the requirements of Court of Claims Act § 11(a)(i). Claimant’s ignorance of the law is not an acceptable explanation for the failure to serve a timely claim, nor is claimant’s allegation that he is incarcerated and without access to legal references (see Matter of Sandlin v State of New York, 294 AD2d 723 [3d Dept 2002]).

Court of Claims Act § 11(a)(i) provides that a copy of the claim “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.” The filing and service requirements set forth in the Court of Claims Act are jurisdictional in nature and therefore must be strictly construed (see Finnerty v New York State Thruway Auth., 75 NY2d 721 [1989]).

Based upon claimant’s failure to properly serve his claim upon defendant by one of the authorized methods set forth in Court of Claims Act § 11(a)(i), the Court lacks jurisdiction over the same. Accordingly, Claim No. 114000 is dismissed.

Claimant’s motion (M-75615) seeking to amend his claim is denied as moot.[1]

June 12, 2009
Albany, New York

Judge of the Court of Claims

Papers Considered:

Motion M-75615

1. Claimant’s “Notice of Motion Requesting to Amend Claim,” dated September 26, 2008;

2. Affirmation in Opposition of Carol A. Cocchiola, AAG, dated November 3, 2008;

3. Claimant’s “Notice of Motion of Claimant’s Memorandum of Law In Response to the Attorney General’s Affirmation in Opposition”, dated November 20, 2008.

Motion M-76006

1. Order to Show Cause of Hon. Judith A. Hard, dated December 16, 2008;

2. Affirmation of Carol A. Cocchiola, AAG, dated January 29, 2009;

3. Claimant’s “Notice of Motion in Response to the Court’s Order to Show Cause”, dated January 30, 2009.

[1]. To the extent claimant alludes, in his reply papers, to seeking permission to file a late claim, it is noted that the Legislature amended Court of Claims Act §10 in 1999, adding subdivision 9, which requires an inmate to exhaust his or her administrative remedies within the DOCS system (7 NYCRR § 1700) as a condition precedent to filing a claim against the State. This exhaustion requirement has been construed to include both an initial review and appeal within the two-tier administrative procedure governing inmate property claims (7 NYCRR 1700.3). After this process has been completed, an inmate has 120 days to serve and file his claim in order to be deemed timely (see Matter of McCullough v State of New York, 3 AD3d 749 [3d Dept 2004]). If the inmate misses this deadline, he or she will not be able to seek late-claim relief pursuant to Court of Claims Act § 10 (6) for the bailment claim (see Roberts v State of New York, 11 AD3d 1000 [4th Dept 2004]).