Pro se inmate filed claim seeking damages for the loss of personal property to which no answer was filed. By Order to Show Cause, the parties were to submit statements regarding the service of the claim and whether it complied with the Court of Claims Act. The Court determined that although served beyond the 120 day limitation period, the State did not answer the claim nor did the State move for permission to file a late answer. Accordingly, the State waived any right to object to the late filing and service of the claim and is precluded at trial from offering evidence contesting liability. Claimant is still required to present evidence on liability and damages.
|Claimant short name:||MASSIAH|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :||The caption has been amended sua sponte to reflect the only proper defendant|
|Judge:||J. DAVID SAMPSON|
|Claimant's attorney:||DOUGLAS MASSIAH, Pro Se|
|Defendant's attorney:||HON. ERIC T. SCHNEIDERMAN
New York State Attorney General
BY: Darren Longo, Esq.
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||January 8, 2018|
|See also (multicaptioned case)|
On May 10, 2016, pro se claimant Douglas Massiah filed claim no. 127925-A seeking damages due to the loss of his personal property which allegedly occurred as he was being transferred from Lakeview Correctional Facility (Lakeview) to Bare Hill Correctional Facility (Bare Hill). No answer to the claim was filed, thereby raising questions regarding the service of the claim upon the Attorney General. By Order to Show Cause dated September 25, 2017 (motion no. M-91205), this Court ordered the parties to submit statements regarding the service of claim no. 127925-A in compliance with the Court of Claims Act.
Pursuant to Court of Claims Act § 10 (9), "[a] claim of any inmate in the custody of the department of corrections and community supervision 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. Such claims must be filed and served within one hundred twenty days after the date on which the inmate has exhausted such remedy." The remedy established for such inmate claims is a two-tier system of administrative review which consists of an initial review and an appeal (7 NYCRR § 1700.3).
According to the documents attached to the claim (see defendant's Exhibit B), claimant's administrative review was approved on September 28, 2015 in the amount of $51.70. Apparently dissatisfied with the amount awarded, claimant then filed an appeal. By letter dated December 15, 2015, claimant was advised that his appeal was approved, but in the same amount of $51.70. Claimant was told that if he refused to accept the $51.70 offer that he could pursue a claim in this Court (see December 15, 2015 letter attached to claimant's notice of intention enclosed as part of defendant's Exhibit A). As a result, claimant had one hundred twenty (120) days, or by April 13, 2016, in which to file his claim and serve a copy upon the Attorney General personally or by certified mail, return receipt requested (Court of Claims Act §§ 10  and 11 [a] [I]).
The filing and service requirements of the Court of Claims Act are jurisdictional in nature and must be strictly construed (Finnerty v New York State Thruway Auth., 75 NY2d 721 ). The failure to comply with the filing and service requirements deprives the Court of jurisdiction, requiring dismissal of the claim (Ivy v State of New York, 27 AD3d 1190 [4th Dept 2006]; Byrne v State of New York, 104 AD2d 782 [2d Dept 1984], app denied 64 NY2d 607 ).
On January 29, 2016, claimant served a notice of intention to file a claim by certified mail, return receipt requested, upon the Attorney General (defendant's Exhibit A). Unfortunately, the service of a notice of intention did not extend claimant's time within which to file and serve a claim for loss of personal property as there is no provision in Court of Claims Act § 10 (9) which allows the service of a notice of intention as a means of extending the time within which to file and serve such a claim (Pristell v State of New York, 40 AD3d 1198 [3d Dept 2007]). Thus, in spite of the service of a notice of intention, claimant still had only until April 13, 2016 within which to file and serve a claim.
On April 13, 2016, claimant attempted to file his claim. This claim was returned by the Court of Claims in Albany on April 27, 2016 as it was not accompanied by the filing fee or by an application for a waiver of the filing fee. The claim was eventually filed as claim no. 127925-A on May 10, 2016, more than one hundred twenty (120) days after accrual of claimant's loss of personal property claim. On May 16, 2016, again more than one hundred twenty (120) days after accrual, claimant served a copy of claim no. 127925-A on the Attorney General by regular mail. A copy of the envelope in which the claim was served is attached as part of defendant's Exhibit B. There is no certified mail or return receipt sticker on the envelope to indicate proper service by certified mail, return receipt requested. Regular mail is not an authorized method of service (Miranda v State of New York, 113 AD3d 943 [3d Dept 2014]). As the claim was served by ordinary mail, defendant requests, but does not move, for dismissal of the claim.
Pursuant to Court of Claims Act § 11 (c ), "[a]ny objection or defense based upon failure to comply with (i) the time limitations contained in section ten of this act [or] (ii) the manner of service requirements set forth in subdivision a of this section ... is waived unless raised, with particularity, either by a motion to dismiss made before service of the responsive pleading is required or in the responsive pleading, and if so waived the court shall not dismiss the claim for such failure." Thus, while the claim was both filed and served beyond the one hundred twenty (120) day limitation period set forth in Court of Claims Act § 10 (9) and was improperly served by ordinary mail in violation of Court of Claims Act § 11 (a) (i), defendant neither moved to dismiss the claim before the answer was due nor raised these failures as affirmative defenses in an answer. In fact, to date, defendant has not answered the claim although its time to do so has long expired, nor has it moved for permission to late file an answer. As a result, defendant has now waived any right to object to the late filing and service of the claim or to the improper method of service. Thus, if defendant had brought a motion to dismiss the claim on the grounds of untimely and improper service of the claim, such a motion would be denied.
Claimant argues that defendant was served with the claim, but does not move for a default judgment based on defendant's failure to answer the claim. If he had, his motion would be denied. Court of Claims Act § 12 (1), provides that "[i]n no case shall any liability be implied against the state. No judgment shall be granted on any claim against the state, except upon such legal evidence as would establish liability against an individual or corporation in a court of law or equity." Some courts have held that this statute precludes the imposition of a default judgment against the State (see, e. g., Galunas v State of New York, UID No. 2016-044-567 [Ct Cl, Schaewe, J., Dec. 14, 2016]; Antonetti v State of New York, UID No. 2009-030-527 [Ct Cl, Scuccimarra, J., April 29, 2009], but see 247-59 W., LLC v State of New York, 27 Misc 3d 570 [Ct Cl, 2010]). In addition, there is no indication that claimant could have satisfied the requirements of CPLR 3215 (f) had he moved for a default judgment.
Claim no. 127925-A is still before the Court. Defendant has not answered the claim nor moved for permission to file a late answer. Claimant has not moved for a default judgment, although such relief would not be available. Under these circumstances, the Court will preclude defendant at trial from offering evidence as to liability. Claimant will still be required to present evidence on liability and damages so that the Court may determine if such proof is sufficient to justify a finding of liability and to calculate any damages (Galunas v State of New York, UID No. 2016-044-567; Antonetti v State of New York, UID No. 2009-030-527; Soto v State of New York, UID No. 2006-036-505 [Ct Cl, Schweitzer, J., Jan. 27, 2006]). Defendant will be permitted to cross-examine claimant and any of claimant's witnesses and will be able to present evidence on the issue of damages (Galunas v State of New York, UID No. 2016-044-567; Antonetti v State of New York, UID No. 2009-030-527).
As claim no. 127925-A is still before the Court, the parties should proceed accordingly. A trial will be scheduled for the spring or summer of 2018.
January 8, 2018
Buffalo, New York
J. DAVID SAMPSON
Judge of the Court of Claims
The following were read and considered by the Court:
1. Order to Show Cause (Motion No. M-91205) dated September 25, 2017;
2. Affirmation of Assistant Attorney General Darren Longo dated October 31, 2017, with annexed Exhibits A-B; and
3. Reply affidavit of Douglas Massiah sworn to November 7, 2017.