Motion to dismiss granted. Although no affidavit by person with knowledge to rebut showing by claimant that claim served by certified mail, return receipt requested, other grounds for dismissal marginally supported. Bailment claim untimely because served more than 120 days after exhaustion of administrative remedies. Notice of Intention did not extend time frame within which to serve and file claim.
|Claimant short name:||DELEON|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||THOMAS H. SCUCCIMARRA|
|Claimant's attorney:||JASON DELEON, PRO SE|
|Defendant's attorney:||HON. ANDREW M. CUOMO, NEW YORK STATE
BY: BARRY KAUFMAN, ASSISTANT ATTORNEY GENERAL
|Third-party defendant's attorney:|
|Signature date:||January 11, 2010|
|See also (multicaptioned case)|
The following papers were read and considered on defendant's motion to dismiss:
1,2 Notice of Motion, Affirmation by Barry Kaufman, Assistant Attorney General and attached exhibits
3 Filed papers: Claim, Answer
No Opposition Filed
Jason DeLeon alleges in his claim, verified on June 5, 2007, that defendant's agents at various correctional facilities lost his personal property in or about August 2006. [Claim No. 113830, filed June 13, 2007]. Claimant's administrative remedy appears to have been exhausted on February 8, 2007. [Ibid. Exhibit B]. In its answer, in addition to general denials, the defendant raises a fourth defense of untimeliness based upon a failure to serve the claim within 120 days of exhaustion of claimant's administrative remedies, and a sixth defense asserting that the Court lacks personal jurisdiction over the defendant because the claim was delivered to the Attorney General's Office by regular mail, rather than by certified mail, return receipt requested. The matter had been scheduled for trial on October 23, 2009. At that time, the attorney for the defendant indicated that defendant had been served with the claim by regular mail only, and the claimant asserted that he had proof of proper service. The trial was adjourned in order to allow claimant an opportunity to review his records to ascertain if he had proof of service. Claimant forwarded a facility disbursement request form dated April 6, 2007 requesting "certified legal mail" to the Court thereafter, suggesting proper service, based upon an asserting exhaustion of administrative remedies in February 2007. This correspondence was in turn forwarded by the Court to the Attorney General's Office with the suggestion that if defendant still intended to move to dismiss the claim based upon its sixth defense asserting improper service, defendant should make a motion supported by an affidavit by a person with knowledge, or else the defense would be deemed waived. The present motion has followed.
As an initial matter, defendant has not included an affidavit by a person with knowledge to support the motion. Instead, an attorney's affirmation attesting to facts on information and belief based upon a review of the office files has been submitted. Counsel notes that Exhibit B is a photocopy of the envelope in which the claim was stamped as received on June 11, 2007 in the Litigation Bureau, and also stamped as received in the New York District Claims Bureau on June 18, 2007, but the postage paid is not shown. [See Id.]. The claim itself is stamped received on June 11, 18 and 25, 2007. [Affirmation, Exhibit A].
Additionally, in rebuttal to claimant's assertion in the correspondence referred to above that the disbursement form is with regard to certified mail service of the claim in April 2007, counsel for defendant argues this form refers to service by certified mail on the Attorney General's office of a notice of intention to file a claim in April 2007, and appends a photocopy of the notice of intention to file a claim. [Affirmation, ¶7, Exhibit D]. The photocopy provided is stamped as received by the Litigation Bureau of the Attorney General's Office on January 30, 2007. [Id.]. Without an explanation by a person with actual knowledge as to what these exhibits represent, the motion is not properly supported on the issue of proper service. Without an affidavit by a person with knowledge there is no explanation for the inconsistencies or provenance of the documents attached to the motion.
With regard to an additional argument made by counsel that the claim was not timely served and filed based upon the fourth defense, in that it was allegedly served more than 120 days after claimant exhausted appeals of his personal property claims remedy, however, the motion is marginally supported.
Court of Claims Act §10(9) requires an inmate seeking damages for lost personal property to serve and file his claim in the Court of Claims within 120 days following exhaustion of available administrative remedies. As noted by counsel, there is no provision for service of a notice of intention to file a claim with regard to causes of action for lost property, [see Pristell v State of New York, 40 AD3d 1198 (3d Dept 2007)](1) thus the January (or April 2007) notice of intention is of no effect in preserving any future ability to serve and file the claim. The verified claim - verified by claimant on June 5, 2007 - that is stamped as received on June 11, 18 or 25, 2007, is untimely regardless of which of the three dates it was served, and regardless of the manner of service, based upon an accrual date of February 8, 2007. [Claim No. 113830 filed June 13, 2007].
Accordingly, defendant's motion based upon the fourth defense raised in the answer that the claim was untimely served and filed more than 120 days after exhaustion is granted, and Claim number 113830 is hereby dismissed.
January 11, 2010
White Plains, New York
THOMAS H. SCUCCIMARRA
Judge of the Court of Claims
1. "Significantly, unlike Court of Claims Act § 10 (2), (3), (3-a), (3-b) and (4), there is no provision in Court of Claims Act § 10 (9) which allows for service of a notice of intention to file a claim as a means of extending the time that a claim may be served or filed." Pristell v State of New York, supra, at 1198-1199.