New York State Court of Claims

New York State Court of Claims

GOSS v. STATE OF NEW YORK, #2009-039-138, Claim No. 116555, Motion No. M-76578


Synopsis


Defendant’s motion to dismiss the claim on jurisdictional grounds pursuant to Court of Claims Act §§ 10 (9) and 11 (a) (I) and on the basis that claimant has not set forth a cause of action in bailment is granted. Defendant offered sufficient proof to establish that claimant failed to exhaust his administrative remedies and that claimant served the claim upon the Attorney General’s Office by regular mail.

Case Information

UID:
2009-039-138
Claimant(s):
KENNETH GOSS, #80A1414, CLINTON CORR. FACILITY
Claimant short name:
GOSS
Footnote (claimant name) :

Defendant(s):
STATE OF NEW YORK1 1.The Court has, sua sponte, amended the caption to reflect the State of New York as the only proper defendant.
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
116555
Motion number(s):
M-76578
Cross-motion number(s):

Judge:
James H. Ferreira
Claimant’s attorney:
Kenneth Goss, pro se
Defendant’s attorney:
Hon. Andrew M. Cuomo
Attorney General of the State of New York
By: Paul F. CaginoAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
August 28, 2009
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

On March 13, 2009, claimant filed a claim seeking damages for the loss of and damage to his television set that he alleges occurred during December 2008 while he was an inmate at Clinton Correctional Facility. Defendant now moves the Court, in lieu of an answer, for an order dismissing the claim on jurisdictional grounds pursuant to Court of Claims Act §§ 10 (9) and 11 (a) (i) and on the basis that claimant has not set forth a cause of action in bailment.

Court of Claims Act section 10 (9) provides, in relevant part, that “[a] 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.” The administrative remedy for personal property claims is codified at 7 NYCRR 1700.3 and provides for a “two-tier system of administrative review.” “All inmate personal property claims shall be filed with and reviewed by the deputy superintendent for administration or functional equivalent, or by a claims reviewer designated by the head of the facility” (7 NYCRR 1700.3 [a]). “If an inmate desires further review . . . [then] the appeal shall be made to, reviewed and decided by the facility superintendent or designee . . . [or] forwarded to central office” depending on the value of the claim (7 NYCRR 1700.3 [b]). The administrative regulation further provides that “[n]o further administrative review is available after appeal [and] [t]he remaining option is for the inmate to pursue the claim in the Court of Claims” (7 NYCRR 1700.3 [b] [4]). The failure to comply with the jurisdictional filing requirements of 7 NYCRR 1700.3 necessitates dismissal of the claim (see Williams v State of New York, 38 AD3d 646, 647 [2007]).

In support of its motion, defendant offers the affidavit of Donna Donahue, Head Account Clerk at Clinton Correctional Facility. Donahue is responsible for “process[ing] inmate property claims filed at [Clinton Correctional Facility].” Donahue states that she “personally reviewed our records, which show that inmate Kenneth Goss (DIN No. 80A01414) has not filed any inmate property claim in connection with a television that he alleged [sic] purchased at this facility and/or sent out for repairs from this facility on or about December 19, 2008 or December 24, 2008.” Donahue further provides that “[t]he time within which . . . inmate Goss can file a claim in connection with said television has expired.”

The Court finds that defendant has offered sufficient proof to establish that claimant failed to exhaust his administrative remedies in accordance with Court of Claims Act § 10 (9). In opposition to the motion, claimant does not refute the proof that he did not file an inmate property claim with the facility. Thus, the Court is compelled to conclude that defendant’s motion to dismiss the claim must be granted.

The Court further finds that defendant has offered sufficient proof to establish that claimant did not serve his claim upon defendant in the proper manner. Court of Claims Act § 11 (a) (i) provides, 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.” “The Court of Appeals has noted in interpreting the above provision that ‘statutory requirements conditioning suit must be strictly construed’ ” (Rodriguez v State of New York, 307 AD2d 657 [2003], quoting Dreger v New York State Thruway Auth., 81 NY2d 721, 724 [1992]). It is well settled that “[o]rdinary mail is not one of the methods of service authorized by Court of Claims Act § 11 (a) and, ‘[g]enerally, the use of ordinary mail to serve the claim upon the Attorney-General is insufficient to acquire jurisdiction over the State’” (Turley v State of New York, 279 AD2d 819, 819 [2001], quoting Philippe v State of New York, 248 AD2d 827 [1998]). Moreover, once an objection to the manner of service is raised, “claimant has the burden of establishing proper service by a preponderance of the evidence” (Simpson v State of New York, UID # 2008-030-558, Claim No. 115597, M-75361 [Scuccimarra, J., September 15, 2008]).

In support of its motion, defendant offers the affirmation of Assistant Attorney General Paul F. Cagino, AAG. Cagino states that his office was served with the claim by regular mail. In support of his statement, AAG Cagino attaches to his affirmation a copy of the envelope used by claimant to serve his claim upon defendant with regular mail postage affixed to the envelope, as well as a copy of claimant’s affidavit of service which states that he deposited the claim in the mailbox at Clinton Correctional Facility for delivery to defendant.

In opposition to the motion, claimant asks the Court to overlook the improper manner of service because he was not aware of the statutory requirements for service. Claimant’s ignorance of the law, however, is not a sufficient excuse for his failure to serve defendant in the proper manner (see Matter of Sandlin v State of New York, 294 AD2d 723, 724 [2002], lv dismissed 99 NY2d 589 [2003]). The Court must therefore conclude that it is without jurisdiction of the claim as it was not served upon the Attorney General in the proper manner pursuant to Court of Claims Act § 11. The Court has considered defendant’s remaining argument and concludes that it is unnecessary to address it.

Accordingly, it is ordered that M-76578 is granted and the claim is dismissed.



August 28, 2009
Albany, New York

HON. JAMES H. FERREIRA
Judge of the Court of Claims


Papers Considered
:
  1. Notice of Motion to Dismiss dated April 23, 2009;
  2. Affirmation in Support of Motion to Dismiss by Paul F. Cagino, AAG, dated April 23, 2009 with exhibits;
  1. Response to Defendant’s Motion to Dismiss dated April 26, 2009; and
  2. Affirmation in Support of Motion to Not Dismiss Claim by Kenneth Goss sworn to on May 5, 2009.