New York State Court of Claims

New York State Court of Claims

MALLOY v. THE STATE OF NEW YORK, #2009-045-006, Claim No. 115771, Motion No. M-75650


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:
Levi Malloy, Pro Se
Defendant’s attorney:
Hon. Andrew M. Cuomo, Attorney GeneralBy: Paul F. Cagino, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
February 5, 2009

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers were read and considered by the Court on this Motion: Defendant’s Notice of Motion, Affirmation in Support with annexed Exhibits A-C, Claimant’s “Rebut of Answer from Attorney General” with annexed Disbursement or Refund Request Form and the filed Claim. Defendant, the State of New York, has brought this motion seeking an order dismissing the claim pursuant to CPLR 3211(a)(2), (7) and (8). Claimant, Levi Malloy, a pro se inmate, opposes the motion.

Claimant alleges that he was originally housed at the Lyon Mountain Correctional Facility. On January 25, 2008 he was placed in the special housing unit at the facility. Claimant had previously locked his personal property inside his locker. At some point thereafter, claimant arrived at the “Up-State Correctional Facility” special housing unit to begin serving his time there. At that time claimant noticed that several items of his personal property were missing. Claimant was then transferred to the Washington Correctional Facility where on March 12, 2008 he determined that other items of his personal property were missing. Claimant filed a “facility claim” at the Greene Correctional Facility which was disapproved on April 21, 2008. Claimant’s appeal of that decision was disapproved on May 29, 2008.

Claimant served a notice of intention on the Office of the Attorney General by certified mail, return receipt requested on July 28, 2008. Claimant filed his claim with the Clerk of the Court of Claims on September 2, 2008 and served the claim upon defendant by regular mail on August 29, 2008.

Defendant seeks dismissal of the claim based upon claimant’s failure to properly serve his claim by one of the authorized methods set forth in Court of Claims Act § 11(a)(i). Defendant argues, that as a result, the Court lacks jurisdiction over the claim. In support, defendant submitted a photocopy of the envelope in which the claim was served which evinces postage in the amount of $ .76 (see Def Exh A).

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 contained in the Court of Claims Act § 11 are jurisdictional in nature and therefore must be strictly construed (Finnerty v New York State Thruway Authority, 75 NY2d 721 [1989]). In this case, the requirement that defendant be served in accordance with Court of Claims Act

§ 11 was not met as the claim was served by ordinary mail. As “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 [3d Dept 2001]), the Court is deprived of jurisdiction.

Defendant concedes that a notice of intention was served by claimant in this matter by certified mail, return receipt requested on the Office of the Attorney General on July 28, 2008. However, defendant contends that Court of Claims Act § 10(9) contains no provision which authorizes the use of a notice of intention to extend the time within which a claim may be filed. Claimant argues that the notice of intention extended his time to file the claim for one year after the claim accrued.

Court of Claims Act § 10(9) provides in pertinent part that a claim of any inmate in the custody of the Department of Correctional Services for the recovery of damages due to the loss of personal property must be filed and served within one hundred twenty days after the date on which the inmate exhausted the administrative remedies established by the Department.

Court of Claims Act § 10(9) does not contain any mention or authorization for the use of a notice of intention. Thus, the use of a notice of intention in the present action was improper and constitutes no legal significance (Christian v State of New York, 21 Misc 3d 1128(A) [Ct Cl 2008]; McCann v State of New York, 194 Misc 2d 340 [Ct Cl 2002]). Consequently, the Court does not have jurisdiction over the matter and must dismiss the claim.

Therefore, for the foregoing reasons, defendant’s motion is granted.

February 5, 2009
Hauppauge, New York

Judge of the Court of Claims