Opinion
# 2015-049-012 Claim No. 124546 Motion Nos. M-85619 M-85724
02-10-2015
MUHSIN FARID HIZBULLAH v. THE STATE OF NEW YORK
Muhsin Farid Hizbullah, Pro Se Eric T. Schneiderman, New York State Attorney General By: Roberto Barbosa, Assistant Attorney General
Synopsis
The Court granted defendant's motion to dismiss inmate's property claim on the ground that it was not properly served in accordance with the Court of Claims Act.
Case information
| UID: | 2015-049-012 |
| Claimant(s): | MUHSIN FARID HIZBULLAH |
| Claimant short name: | HIZBULLAH |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | The caption has been amended sua sponte to reflect the only properly named defendant. |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 124546 |
| Motion number(s): | M-85619, M-85724 |
| Cross-motion number(s): | |
| Judge: | DAVID A. WEINSTEIN |
| Claimant's attorney: | Muhsin Farid Hizbullah, Pro Se |
| Defendant's attorney: | Eric T. Schneiderman, New York State Attorney General By: Roberto Barbosa, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | February 10, 2015 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
By claim filed June 19, 2014, claimant Muhsin Farid Hizbullah, an inmate proceeding pro se, alleges that while he was incarcerated at Southport Correctional Facility ("Southport"), a correction officer stole certain items of his property during a cell search on March 17, 2014. He seeks to recover the value of the property that he contends was taken.
Defendant State of New York moves to dismiss the claim (Motion No. M-85619), on the ground that it was served by regular mail. In support of that contention, defendant submits a copy of the claim it received, along with the envelope in which it was mailed, which bears a postage mark in the amount of $2.03 (Def. Mot. Ex. A). Defendant also appends the verified answer it filed in response to the claim, in which it raises as its first affirmative defense the following:
". . . [T]his Court lacks personal jurisdiction over the defendant, the State of New York, and subject matter jurisdiction of the claim, as the claim was served by regular mail and not by certified mail, return receipt requested or personal service as required by Court of Claim Act § 11."
Claimant responds with his own motion - which is essentially a submission in opposition to the defendant's application - in which he moves the Court not dismiss his claim (Motion No. 85724). He attaches to his motion papers a certified mail envelope bearing a mark for $6.48, a certified mail receipt, and a card indicating that the envelope was received by the New York State Department of Law on April 17, 2014.
The State has responded to this submission with an affirmation of an assistant attorney general. It avers: (1) the only document received by the State on April 17 was a notice of intention to file a claim; and (2) that notice was not verified, and was treated as a nullity (Def. Aff. in Opp. ¶¶ 5-6). Along with the affirmation, defendant submits a cover letter dated April 18, 2014, returning claimant's notice of intention as unverified (id. ex. A).
In yet one more reply, Hizbullah acknowledges that the document sent in April was a notice of intention (see Cl. Reply ¶ 4 ["Claimant has previously enclosed copies and original . . . of certified mail and return receipt which shows that he did in fact file . . . Notice of Intent . . ."]). He contends, however, that the label on the document was a mere "slip of words" (id. ¶ 5). He also asserts that he returned a verified copy of the notice of intention on May 29, 2014, although he does not indicate how service of that notice was effected (see id. ¶ 6).
In short, there seems no disagreement that claimant served an unverified notice of intention by certified mail, return receipt requested, and he has never served the document filed in this Court as a claim, except by regular mail.
Court of Claims Act § 11(a)(i) provides in pertinent part that:
"[A] copy [of the claim] shall be served personally or by certified mail, return receipt requested, upon the attorney general within the times hereinbefore provided for filing with the clerk of the court."
The Court of Appeals has directed that these service requirements be "strictly construed" (Finnerty v New York State Thruway Auth., 75 NY2d 721, 722-723 [1989]). Compliance therewith is a jurisdictional prerequisite for bringing suit in this Court, and service by regular mail therefore compels dismissal (see Fulton v State of New York, 35 AD3d 977 [3d Dept 2006], lv denied 8 NY3d 809 [2007]; Govan v State of New York, 301 AD2d 757 [3d Dept 2003], lv denied 99 NY2d 510 [2003]), as long as the defect is raised with particularity either by a pre-answer motion to dismiss, or in the responsive pleading (Court of Claims Act § 11[c]).
In this case, defendant raised claimant's failure to properly serve the claim in its answer, with the particularity required by Court of Claims Act § 11(c). It has submitted an affirmation attesting to claimant's service via regular mail, and has provided documentary support for that assertion.
Claimant's response, as I understand it, is that he properly served his claim in all material respects, with his only error being the label he attached to it. But that is not correct. Even assuming that he fixed the initial verification problem with his notice of intention (and there is no evidence of such except for his conclusory statement in this regard), it does not constitute a claim, because it was never filed with the Court (see Court of Claims Act §11[a][i]). Proper service of a notice of intention does not absolve the claimant of the need to file and serve a claim in conformance with the Court of Claims Act (see Cross v State of New York, UID No. 2011-015-214 [Ct Cl, Collins, J., Jan. 10, 2011] [dismissing claim served by regular mail, although notice of intention served by certified mail]). Further, to the extent claimant seeks to have his notice of intention deemed to be a claim, that application has not been properly made. Court of Claims Act § 10(8)(a) states:
"A claimant who timely serves a notice of intention but who fails to timely serve or file a claim may, nevertheless, apply to the court for permission to treat the notice of intention as a claim. The court shall not grant such application unless: it is made upon motion before an action asserting a like claim against a citizen of the state would be barred under the provisions of article two of the civil practice law and rules; the notice of intention was timely served, and contains facts sufficient to constitute a claim; and the granting of the application would not prejudice the defendant."
Absent a motion, as required by this section, this Court cannot invoke section 10(8) (see Ortiz v State of New York, UID No. 2011-039-222, n 1 [Ct Cl, Ferreira, J., Mar. 17, 2011] [court cannot treat notice of intention as claim under § 10(8) absent motion]; Castollanos v State of New York, UID No. 2006-030-577 [Ct Cl, Scuccimarra, J., Oct. 17, 2006] [same]). In any case, the notice of intention provisions do not apply to inmate property claims like the one at issue (see Spaight v State of New York, 91 AD3d 995, 996 [3d Dept 2012]; Pristell v State of New York, 40 AD3d 1198, 1198-1199 [3d Dept 2007]).
In light of the foregoing, claimant's motion no. M-85724 is denied, defendant's motion no. M-85619 is granted, and the claim is dismissed.
February 10, 2015
Albany, New York
DAVID A. WEINSTEIN
Judge of the Court of Claims
Papers Considered:
1. Defendant's Notice of Motion, Affirmation and annexed exhibits.
2. Claimant's Notice of Motion and Affirmation.
3. Defendant's Affirmation in Opposition to Claimant's Motion and annexed exhibit.
4. Claimant's Reply.