Defendant's motion to dismiss the claim based upon improper service was granted. Claimant's motion requesting a "waiver" of the service requirements (equitable estoppel) was denied.
|Claimant short name:||SMITH|
|Footnote (claimant name) :|
|Defendant(s):||STATE OF NEW YORK|
|Footnote (defendant name) :||The Court, sua sponte, has amended the caption to reflect the State of New York as the only proper defendant before this Court.|
|Motion number(s):||M-78246, M-78341|
|Judge:||NICHOLAS V. MIDEY JR.|
|Claimant's attorney:||RICKY SMITH, Pro Se|
|Defendant's attorney:||HON. ANDREW M. CUOMO
BY: Bonnie G. Levy, Esq.,
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||September 21, 2010|
|See also (multicaptioned case)|
Defendant has brought a motion (M-78246) seeking an order dismissing the claim based upon both improper service and a failure to state a cause of action. In addition to his response to this motion, claimant has also instituted a motion seeking a "waiver" of the certified mail, return receipt request service requirement of the Court of Claims Act. For purposes of judicial economy, both motions will be considered together herein.
The following papers were considered by the Court in connection with these motions:
Notice of Motion to Dismiss Claim, Affirmation, with Exhibit (M-78246) 1,2
Letter response from claimant dated May 6, 2010 (M-78246) 3
Notice of Motion, Affidavit, with Exhibits (M-78341) 4
Supplemental Affirmation, with Exhibit (M-78246/M-78341) 5
Additional Response from Claimant dated July 7, 2010, with Exhibit (M-78246, M-78341) 6
Filed Papers: Claim.
In his filed claim, claimant seeks damages based upon allegations of medical malpractice and/or negligence, which allegedly occurred at Watertown Correctional Facility on or about April 5, 2010. Specifically, claimant alleges that he was prescribed certain medication that resulted in adverse side effects, and that despite his complaints he was required to continue taking said medication. In the claim, claimant has also made reference to causes of action of defamation, slander, falsifying medical documents, and racial profiling.
In its motion (M-78246), and as noted at the outset herein, defendant contends that this claim is jurisdictionally defective in that both the Notice of Intention to Serve and File a Claim and the Claim were served by regular, first class mail, and not by certified mail, return receipt requested, as required by Court of Claims Act § 11(a).
As set forth in Court of Claims Act § 11(a), a claim must be served upon the Attorney General either personally or by certified mail, return receipt requested (Hodge v State of New York, 213 AD2d 766). These service requirements are jurisdictional prerequisites to the institution and maintenance of a claim, and as such must be strictly construed (Greenspan Bros. v State of New York, 122 AD2d 249). Service of a claim by ordinary, first class mail is not one of the methods of service authorized by Court of Claims Act § 11(a) (Turley v State of New York, 279 AD2d 819), and service of a claim which is not made in accordance with the provisions of § 11 is insufficient to confer jurisdiction over the State (Hodge v State of New York, supra; Philippe v State of New York, 248 AD2d 827).
Claimant does not dispute that his claim was in fact served by regular, first class mail, rather than by certified, return receipt requested, as required by § 11(a). However, in his motion (M-78341), claimant requests that this Court "waive" the service requirements of § 11(a), contending that he attempted to serve this claim by certified mail, return receipt requested, but was prevented from doing so through the actions of facility personnel at Watertown Correctional Facility.
In essence, claimant is requesting that this Court apply the doctrine of equitable estoppel against the State, in that the State should not be permitted to rely upon the defense of improper service, due to the actions taken by the facility personnel. In Wattley v State of New York, (146 Misc 2d 968), an inmate claimant had also made a request to facility personnel that his claim be served by certified mail, return receipt requested, but officials nevertheless utilized regular mail for service of his claim. In that particular case, Wattley's inmate account actually had been deducted for the cost of the certified mailing, return receipt requested. As a result, the Court applied equitable estoppel against the State and denied the State's motion to dismiss the claim. In doing so, the Court noted that claimant "did what he was supposed to do and all that defendant allowed" and that by doing so "the burden was on defendant to explain why claimant's instructions were not complied with." (Wattley v State of New York, supra at 970).
In this particular matter, however, claimant has provided no documentary evidence, or any other evidence to corroborate his unsupported allegations that he attempted to serve this claim by certified mail, return receipt requested.
Furthermore, as noted by defendant's attorney in her Supplemental Affirmation (Item 5), Directive # 4421, issued by the Department of Correctional Services, specifically provides a method by which an inmate can apply for and obtain authorization for funds to be advanced to cover the cost of certified mailing for legal mail (see Exhibit A to Item 5). In this case, claimant has not submitted any evidence to establish that he followed, or attempted to follow, this procedure to obtain such an advance, or that he was prevented from doing so by facility officials.
As set forth above, the service requirements under Court of Claims Act § 11(a) are jurisdictional prerequisites and must be strictly construed (Greenspan Bros. v State of New York, supra). Furthermore, the doctrine of equitable estopped will only be applied against a governmental entity, such as the State, in limited and rare circumstances (Bender v New York City Health and Hosps. Corp., 38 NY2d 662; Francis v State of New York, 155 Misc 2d 1006).
In light of the foregoing, and after careful review of the papers submitted in connection with these motions, the Court finds that claimant is not entitled to rely upon the doctrine of equitable estoppel. Accordingly, since this claim was served by regular, first class mail, and not by certified mail, return receipt requested, it is jurisdictionally defective under § 11(a) and must be dismissed. Based on this determination that the claim must be dismissed for improper service, it is not necessary for the Court to address that aspect of defendant's motion (M-78246) which seeks dismissal of the claim for failure to state a cause of action.
Accordingly, it is
ORDERED, that Motion No. M-78246 is hereby GRANTED; and it is further
ORDERED, that Motion No. M-78341 is hereby DENIED; and it is further
ORDERED, that Claim No. 118258 is hereby DISMISSED.
September 21, 2010
Syracuse, New York
NICHOLAS V. MIDEY JR.
Judge of the Court of Claims