Motion to dismiss untimely bailment claim granted. Service of a notice of intention does not extend time within which to serve and file bailment claim; no late claim relief. Calling the actions of the State employees theft does not change the nature of the cause of action into something other than bailment.
|Claimant short name:||VEGA|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||THOMAS H. SCUCCIMARRA|
|Claimant's attorney:||JOSE VEGA, PRO SE|
|Defendant's attorney:||HON. ANDREW M. CUOMO, NEW YORK STATE
BY: DEWEY LEE, ASSISTANT ATTORNEY GENERAL
|Third-party defendant's attorney:|
|Signature date:||January 25, 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 Dewey Lee, Assistant Attorney General and attached exhibits
3-5 Filed papers: Claim, Answer; Vega v State of New York, Claim No. 114105, Motion No. M-74218 (Scuccimarra, J., February 7, 2008)
No Opposition Filed
Jose Vega alleges in Claim number 114105 that defendant's agents at Green Haven Correctional Facility confiscated his property as contraband on July 6, 2006 during a cell search and did not allow him to dispose of same in contravention of facility regulations. He also alleges that he was issued a misbehavior report in connection with the seizure, was found guilty of various disciplinary violations, and suffered a penalty of confinement and loss of privileges, but does not allege that he was wrongfully confined. Rather, he claims that he suffered mental anguish due to the property loss and the persistent denial of relief pursuant to his inmate personal property claims remedy. With regard to the property loss, he asserts he exhausted his administrative remedies, on or about November 8, 2006, and that he then served a Notice of Intention to File a Claim on December 19, 2006 by regular mail. According to the affidavit of service, the claim itself was served upon the Attorney General by certified mail, return receipt requested August 9, 2007. The claim was filed in the Office of the Chief Clerk of the Court of Claims on August 16, 2007.
In its Answer, the State raises several defenses, among them a failure to exhaust administrative remedies, expiration of the statute of limitations, lack of jurisdiction because the claim was untimely served and filed, and lack of jurisdiction because the notice of intention was sent by regular mail, and thus did not operate to extend the time within which to serve and file a claim.
Defendant now moves to dismiss the claim as untimely. No opposition has been filed.
Court of Claims Act §11(b) requires that a notice of intention ". . . state the time when and place where such claim arose, [and] the nature of same . . ." The purpose of the notice of intention is to put the defendant State on notice of a potential suit against it, so that it may investigate the claim and infer a theory of liability. It also acts to extend the period within which a claim must be served and filed, provided it has been properly served and contains the required information. While it need not be scrutinized with the same attention as a pleading, it should nonetheless perform its notice function, as well as provide specific enough information to determine whether any subsequently served and filed claim is timely filed. "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, 40 AD3d 1198, 1199 (3d Dept 2007). Additionally, to be effective a notice of intention must be served upon the Attorney General's Office either personally, or by certified mail, return receipt requested. Court of Claims Act §11(a)(i).
Court of Claims Act §10(9) provides that an inmate's claim for loss of personal property may not be filed until the administrative remedies provided by the applicable regulations have been exhausted. [See 7 NYCRR Part 1700]. Thereafter, ". . . [s]uch 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). Late claim relief is not available under Court of Claims Act §10(6) for such claims. See Blanche v State of New York, 17 AD3d 1069 (4th Dept 2005); Roberts v State of New York, 11 AD3d 1000 (4th Dept 2004) see also Pristell v State of New York, supra.
A claim asserting such a cause of action must be served and filed within 120 days of exhaustion of a claimant's administrative remedy, timely and proper service of a notice of intention does not extend the time within which to serve and file a claim, nor is late claim relief available. Calling the actions by State agents "theft" does not make the cause of action other than what it is, namely one asserting that the State is liable under a theory of bailment. As a bailment claim it is untimely.
The claim also asserts some mental anguish or emotional injury associated with the various denials of administrative relief with regard to his personal property. A claim seeking recovery for negligent infliction of emotional distress(1) without alleging a ". . . contemporaneous or consequential physical injury . . ." [see Johnson v State of New York, 37 NY2d 378, 381 (1975)], must generally be premised upon a breach of duty owed directly to a claimant, which either endangered his physical safety or caused him to fear for his own physical safety. Thomas v Supermarkets Gen. Corp., 154 Misc 2d 828 (Sup Ct Nassau County 1992). Assuming only for the sake of argument that a breach of an alleged bailment is such a duty, the claim here is still untimely because the notice of intention did not act to extend the time within which such a claim should be served and filed from the ninety (90) days to two (2) years from its accrual. See Court of Claims Act §10(3).
Based on the foregoing, defendant's motion to dismiss is hereby granted, and Claim Number 114105 is in all respects dismissed.
January 25, 2010
White Plains, New York
THOMAS H. SCUCCIMARRA
Judge of the Court of Claims
1. The State cannot be held liable for the intentional infliction of emotional harm. The State is an entity, incapable of forming the requisite intent. Furthermore, "...public policy prohibits a claim for intentional infliction of emotional distress from being brought against the State"....(citation omitted), De Lesline v State of New York, 91 AD2d 785, 786 (3d Dept 1982); and the State is not subject to punitive damages. Sharpata v Town of Islip, 56 NY2d 332, 334 (1982); Wheeler v State of New York, 104 AD2d 496,498 (2d Dept 1984).