New York State Court of Claims

New York State Court of Claims

PAGA’N v. THE STATE OF NEW YORK, #2009-033-351, Claim No. 116075, Motion Nos. M-76115, M-76483


Synopsis



Case Information

UID:
2009-033-351
Claimant(s):
CHRISTOPHER PAGA’N
Claimant short name:
PAGA’N
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
116075
Motion number(s):
M-76115, M-76483
Cross-motion number(s):

Judge:
James J. Lack
Claimant’s attorney:
Christopher Paga’n, Pro Se
Defendant’s attorney:
Andrew M. Cuomo, New York State Attorney GeneralBy: Thomas R. Monjeau, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
September 25, 2009
City:
Hauppauge
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

This is a claim of Christopher Paga’n (hereinafter “claimant”) relating to the destruction of claimant’s personal property through the alleged negligence of defendant. The claim arose on November 10, 2007, at Eastern Correctional Facility, Napanoch, New York, when claimant’s personal property was destroyed in his cell.

Claimant moves this Court to deem his notice of intention as a claim pursuant to Court of Claims Act 10(8)[1]. Claimant indicates the claim he filed was served by regular mail, which he concedes is not proper service. Thus, the claim must be dismissed.


Defendant argues claimant failed to properly serve the notice of intention in a timely manner upon the Attorney General’s office. Defendant submits a copy of the envelope which contained claimant’s notice of intention. The envelope indicates it was mailed by claimant on February 12, 2008 and received by defendant on February 14, 2008. Defendant argues the notice of intention should have been served by February 9, 2008.

Court of Claims Act § 11(a) states that a copy of the claim or notice of intention “shall be served personally or by certified mail, return receipt requested, upon the attorney general”. The requirement of personal service or service by certified mail, return receipt requested cannot be satisfied by alternate means of mailing. Hodge v State of New York, 213 AD2d 766.

Court of Claims Act §10(3) states that a claim to recover for damages to property based upon the negligence of the State’s officers or employee
shall be filed and served upon the attorney general within ninety days after the accrual of such claim, unless the claimant shall within such time serve upon the attorney general a written notice of intention to file a claim therefor, in which event the claim shall be filed and served upon the attorney general within two years after the accrual of such claim.

According to Court of Claims Act §11(a) service of a notice of intention or a claim upon the attorney general’s office is not complete until it is received.

The requirements of the Court of Claims Act are jurisdictional in nature and must be strictly construed (Lurie v State of New York, 73 AD2d 1006, aff’d 52 NY2d 849). The purpose of these requirements is to give the State prompt notice of an occurrence and an opportunity to investigate the facts and prepare a defense. It is well settled that if the filing is not timely then the claim is subject to dismissal (Greenspan Bros. v State of New York, 122 AD2d 249).

The Court finds the notice of intention served upon defendant was not timely. Court of Claims Act §10(8) requires a notice of intention to be timely served to allow it to be converted to a claim.

Court of Claims Act §10(9) states
claim of any inmate in the custody of the department of correctional services for recovery of damages for injury to or loss of personal property may not be filed unless and until the inmate has exhausted the personal property claims administrative remedy, established for inmates by the department. Such claim must be filed and served within one hundred twenty days after the date on which the inmate has exhausted such remedy.

Court of Claims Act §10(9) does not allow the time to file a claim to be extended by the filing of a notice of intention, nor does it provide claimant may seek relief pursuant to Court of Claims Act §10(8) (Pristell v State of New York, 40 AD3d 1198).

Based upon the foregoing, claimant’s motion to treat the notice of intention as a claim is denied and the Court sua sponte dismisses the claim.

In addition to this motion, claimant made a motion for summary judgment[2] (Motion No. 76483). Claimant’s Notice of Motion for Summary Judgment is denied as moot.


September 25, 2009
Hauppauge, New York

HON. JAMES J. LACK
Judge of the Court of Claims




[1].The following papers have been read and considered on claimant’s motion: Application to Court to Treat Notice of Intention to File Claim as Claim dated December 19, 2008 and filed December 26, 2008; Affidavit in Support of Application to Treat Notice of Intention as a Claim of Christopher Paga’n dated December 19, 2008 and filed December 26, 2008; Affirmation in Opposition of Thomas R. Monjeau, Esq. with annexed Exhibits A-B dated January 28, 2009 and filed January 29, 2009.
[2].The following papers have been read and considered on claimant’s motion: Notice of Motion for Summary Judgement sworn to March 23, 2009 and filed April 2, 2009; Claimant’s Statement Pursuant to CPLR 3212 (b) Summary Judgement of Christopher Paga’n with annexed Exhibits sworn to March 23, 2009 and filed April 2, 2009; Affirmation in Opposition to Claimant’s Motion for Summary Judgment of Thomas R. Monjeau, Esq. with annexed Exhibits A-B dated June 17, 2009 and filed June 18, 2009; Affidavit of J. Wynkoop of the New York State Department of Correctional Services sworn to June 17, 2009 and filed July 1, 2009; Affidavit of Sgt. B. Leifeld of the New York State Department of Correctional Services sworn to June 17, 2009 and filed July 1, 2009.