Opinion
# 2019-038-615 Claim No. 133063 Motion No. M-94206 Motion No. M-94480
12-23-2019
TERRANCE MAYNARD v. STATE OF NEW YORK
TERRANCE MAYNARD, Pro se LETITIA JAMES, Attorney General of the State of New York By: Ray A. Kyles, Assistant Attorney General
Synopsis
Defendant's motion to dismiss the claim granted. The claim failed to comply with the substantive pleading requirements of Court of Claims Act § 11 (b). Defendant's motion to dismiss the amended claim denied as moot inasmuch as a jurisdictional defect cannot be cured through service of an amended pleading.
Case information
| UID: | 2019-038-615 |
| Claimant(s): | TERRANCE MAYNARD |
| Claimant short name: | MAYNARD |
| Footnote (claimant name) : | |
| Defendant(s): | STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 133063 |
| Motion number(s): | M-94206, M-94480 |
| Cross-motion number(s): | |
| Judge: | W. BROOKS DeBOW |
| Claimant's attorney: | TERRANCE MAYNARD, Pro se |
| Defendant's attorney: | LETITIA JAMES, Attorney General of the State of New York By: Ray A. Kyles, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | December 23, 2019 |
| City: | Saratoga Springs |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
On May 9, 2019, claimant, an individual currently incarcerated in a State correctional facility, filed this claim seeking compensation for items of property that were allegedly lost by defendant's agents at Green Haven Correctional Facility (CF) on May 22, 2018. The claim alleges merely that claimant "was transferred from Five Points to Green Haven [CF] on May 22, 2018, and [his] Property was not with [him]" (Claim No. 133063, ¶ 2) and demands compensation in the amount of $4,159.25. On June 13, 2019, defendant filed a pre-answer motion to dismiss (M-94206) contending that the Court lacked jurisdiction over the claim on three grounds, namely, that: (1) claimant failed to exhaust his administrative remedies prior to filing the claim, (2) the claim was untimely served, and (3) the claim failed to comply with the pleading requirements set forth in Court of Claims Act § 11 (b).
Claimant opposed the motion and simultaneously filed an amended claim on July 8, 2019 that alleges that on May 21, 2018, claimant packed all of his property at Five Points Correctional Facility (CF) into four bags and left them in the draft room but that when he arrived at Green Haven CF on May 22, 2018, one of the bags was missing (see Amended Claim No. 133063, ¶¶ 5-6). The amended claim further alleges that the missing bag was located on May 29, 2018 but that it had been cut open and a number of items of property were missing (see id. at ¶¶ 7-8). The amended claim includes an itemized list of each piece of property that was allegedly missing and its price, and receipts and a Personal Property Transferred (I-64) form are attached as exhibits (see id. at ¶ 9, unenumerated exhibits). The amended claim also alleges that claimant filed a personal property claim on June 3, 2018, that the personal property claim was denied on June 11, 2018, that claimant filed an appeal on June 17, 2018, and that after inquiring about the status of his appeal "numerous times," claimant received a letter on January 11, 2019 stating "that a claim appeal was never received" (see id. at ¶¶ 9-12, unenumerated exhibits [Brandow Correspondence, dated Jan. 9, 2019]). The amended claim alleges that it was timely filed "within 120 days of January 11, 2019, the date the appeal of [claimant's] property claim was denied" (id. at ¶ 14).
Claimant first laid out this timeline of events in correspondence to the Court dated May 22, 2019 in which he stated that his facility claim was denied on June 11, 2018, that he filed an appeal on June 17, 2018, and that on January 13, 2019 he "received a letter informing [him] that [he] never filed an appeal" (Claim No. 133063, attachment [Maynard Correspondence, dated May 22, 2019]).
Defendant then filed a second pre-answer motion (M-94480), which seeks to dismiss the amended claim on the ground that claimant failed to seek leave of court before filing and serving the amended claim. Defendant argues that because more than twenty days after service of the initial claim had expired, claimant was not entitled to serve an amended claim as of right but was required to obtain leave of court under CPLR 3025 (b) and that, because claimant failed to do so, the amended claim is a nullity (see Kyles Affirmation [M-94480], ¶ 8). In opposition, claimant argues that his service of the amended claim on July 5, 2019 "falls into the [20-day] window specified" in CPLR 3025 (a), which governs service of amended pleadings as of right, and that the amended claim thus should not be dismissed (see Maynard Affirmation in Support of Motion in Response to Dismiss Claim [M-94480], ¶ 5).
Defendant also states that it is moving to dismiss the amended claim for lack of jurisdiction due to improper service by regular mail (see Notice of Motion, dated Aug. 20, 2019; Kyles Affirmation [M-94480], ¶ 2). However, defendant offers no substantive argument in support of that ground for relief in its affirmation of counsel, and indeed, after arguing that the amended claim must be dismissed for failure to seek leave of the court, states that "the [amended] claim must be dismissed on this ground alone" (Kyles Affirmation [M-94480], ¶ 9).
Turning first to defendant's motion to dismiss the initial claim (M-94206), Court of Claims Act § 10 (9) states that "[a] claim of any inmate in the custody of the department of corrections and community supervision for recovery of damages for . . . 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" (emphasis added). Department of Corrections and Community Supervision (DOCCS) regulations provide for "a two-tier system of administrative review for inmate personal property claims," consisting of an initial review and then an administrative appeal "[i]f an inmate desires further review" (7 NYCRR 1700.3). All lost property claims by inmates in DOCCS custody "must be filed and served within [120] days after the date on which the inmate has exhausted such remedy" (Court of Claims Act § 10 [9]). The failure to exhaust the available administrative remedies deprives the Court of Claims of subject matter jurisdiction and requires dismissal of the claim (see Williams v State of New York, 38 AD3d 646, 647 [2d Dept 2007]).
Defendant argues that the claim must be dismissed because claimant "has failed to attach a copy of an institutional claim concerning any los[t] property allegations" and "has failed to show that he exhausted his administrative remedies even if he had filed a claim" (Kyles Affirmation in Support of Motion to Dismiss [M-94206], ¶¶ 5-6). Claimant asserts in an unsworn and unsigned "affirmation" that he "filed [a] facility claim on June 3, 2018," that the claim was denied on June 11, 2018, that he filed an appeal on June 17, 2018, and that on January 11, 2019, he was informed "that [he] did not file an appeal" (Maynard Affirmation in Support of Motion in Response to Dismiss Claim [M-94206], ¶¶ 5-6). In claimant's verified amended claim, he similarly alleges that he filed an appeal on June 17, 2018 and that he was informed on January 11, 2019 that the appeal was never received (see Amended Claim No. 133063, ¶¶ 11-12). Attached to the amended claim is a memorandum from IGP Supervisor Stanaway to claimant dated September 11, 2018 that advised claimant that he was required to appeal the denial of his facility claim and not grieve the matter and attached the facility claim for claimant to pursue his appeal (see id., unenumerated exhibits [Stanaway Memorandum, dated Sep. 11, 2018]) and a January 9, 2019 letter from Acting Deputy Commissioner for Administrative Services Stephen G. Brandow informing claimant that Green Haven CF staff had not received an appeal from him and that his claim was closed (see id. [Brandow Correspondence, dated Jan. 9, 2019])
Although claimant's reply submission is styled as an "affirmation," it lacks evidentiary value inasmuch as it is unsigned, claimant has not demonstrated that he is a person authorized to submit an affirmation in lieu of affidavit, and claimant is a party to the action (see CPLR 2106).
Due to a typographical error, claimant's submission indicates that he received this communication on January 11, 2018.
The State's waiver of sovereign immunity "is contingent upon a claimant's compliance with specific conditions placed on the waiver by the Legislature" (Lepkowski v State of New York, 1 NY3d 201, 206 [2003]), including Court of Claims Act § 10 (9), which, as discussed above, prohibits an inmate from filing a lost property claim "unless and until the inmate has exhausted the personal property claims administrative remedy, established . . . by [DOCCS]." Here, although claimant purported to submit an appeal to the disapproval of his claim, evidence establishes that the appeal was never processed, and that the merits of his appeal was never reached. Thus, claimant did not exhaust his administrative remedies as required by the Court of Claims Act before filing the instant claim (see Kolnacki v State of New York, 8 NY3d 277, 280 [2007], rearg denied 8 NY3d 994 [2007] ["statutory requirements conditioning suit must be strictly construed" (internal quotation marks omitted)]; Adams v State of New York, UID No. 2017-015-259 [Ct Cl, Collins, J., Sept. 20, 2017] ["there is no provision in either the Court of Claims Act or the applicable regulation which permits an action in the Court of Claims absent a timely administrative appeal determination"]).
Notwithstanding that claimant did not exhaust his administrative remedies for the purposes of commencing this claim, the doctrine of equitable estoppel may apply to preclude defendant from asserting this jurisdictional defense. Although typically "an estoppel may not be applied to the State when it exercises a governmental function" (Stroud v State of New York, 184 Misc 2d 876, 878 [Ct Cl 2000]), it may be invoked "if it is shown that a manifest injustice resulted from actions taken by the agency in its proprietary or contractual capacity" (Matter of Branca v Board of Educ., Sachem Cent. School Dist. at Holbrook, 239 AD2d 494, 495-496 [2d Dept 1997]). When the State "acts or comports itself wrongfully or negligently, inducing reliance by a party who is entitled to rely and who changes his position to his detriment, the State should be estopped from asserting a defense which it otherwise could have raised" (Stroud, 184 Misc 2d at 878 [emphasis added]). Equitable estoppel has been invoked "against governmental entities where its misleading nonfeasance would otherwise result in manifest injustice, such as where the [claimant] has been the victim of bureaucratic confusion and deficiencies" (Agress v Clarkstown Cent. School Dist., 69 AD3d 769, 771 [2d Dept 2010] [internal quotation marks and citations omitted]; see Bender v New York City Heath & Hosp. Corp., 38 NY2d 662, 668 [1976] ["The equitable bar to a defense may arise by virtue of positive acts, or omissions where there was a duty to act"]). Specifically, in the Court of Claims, equitable estoppel may be applied due to the misfeasance or malfeasance of DOCCS officials in the performance of some act that prevented an incarcerated claimant from complying with the jurisdictional requirements of the Court of Claims Act (see Rivera v State of New York, 5 AD3d 881, 881 [3d Dept 2004]).
Here, claimant's verified amended claim alleges that he timely appealed the disapproval of his administrative claim, but that it was not acted upon. Defendant has failed to address claimant's claim that he submitted the appeal, nor did defendant submit an affidavit or other sworn testimony of any official with personal knowledge that the appeal was never received, or that there was no misfeasance or malfeasance committed by correctional officials. Defendant thus has not rebutted claimant's showing that he timely appealed his administrative claim, and the Court finds that defendant is equitably estopped from asserting the jurisdictional defense that claimant has failed to exhaust his administrative remedies.
Defendant alternatively argues that the claim must be dismissed on the ground that it fails to satisfy the jurisdictional pleading requirements of Court of Claims Act § 11 (b). Defendant argues that the bare statement in the initial claim that claimant "was transferred from Five Points to Green Haven [CF] on May 22, 2018, and [his] Property was not with [him]" (Claim No. 133063, ¶ 2) is "too general of a description to satisfy the pleading requirements of [Court of Claims Act] § 11 (b)" (Kyles Affirmation in Support of Motion to Dismiss [M-94206], ¶ 10). Defendant further argues that "the [initial] claim fails to allege any specific act or omission for which the State could be held liable" and that the "allegations only provide a very vague statement concerning [claimant's] property, and thus fail to state with sufficient particularity . . . what was lost" (id. at ¶ 13). Claimant does not address this argument in his opposition to the motion, but his amended claim appears to address the alleged insufficiency of the allegations.
Court of Claims Act § 11 (b) requires, among other things, that "[t]he claim shall state the time when and place where such claim arose, the nature of same, the items of damage or injuries claimed to have been sustained and . . . the total sum claimed." The pleading must set forth sufficient facts to satisfy each of the pleading requirements set forth in Court of Claims Act § 11 (b) (see Kolnacki, 8 NY3d at 280-281), and the failure to do so is a fatal defect in subject matter jurisdiction requiring dismissal of the claim (see Lepkowski, 1 NY3d at 209; see also Kolnacki, 8 NY3d at 281). The purpose of the pleading requirements of Court of Claims Act § 11 (b) is "to enable the State . . . to investigate the claim[s] promptly and to ascertain its liability under the circumstances" (Lepkowski, 1 NY3d at 207 [internal quotation marks omitted]). "Although absolute exactness is not required, the claim must provide a sufficiently detailed description of the particulars of the claim . . . [and] defendant is not required to ferret out or assemble information that section 11 (b) obligates the claimant to allege" (Morra v State of New York, 107 AD3d 1115, 1115-1116 [3d Dept 2013] [internal quotations and citations omitted]).
The Court first must determine whether the initial claim or the amended claim is the operative pleading for the purposes of defendant's jurisdictional argument. The Rules of the Court of Claims permit a party to serve an amended pleading "in the manner provided by CPLR 3025, except that a party may amend a pleading once without leave of court within 40 days after . . . service [of the original pleading], or at any time before the period for responding to it expires, or within 40 days after service of a pleading responding to it" (22 NYCRR 206.7 [b]). Here, claimant filed the initial claim with the Clerk of the Court of Claims on May 9, 2019 (see Claim No. 133063) and served it on the Attorney General on May 13, 2019 (see Kyles Affirmation [M-94480], ¶ 3, Exhibit A), and he filed and served the amended claim on July 8, 2019 (see Amended Claim No. 133063; Kyles Affirmation [M-94480], ¶ 5, Exhibit C), which fell outside the statutory 40-day period.
Nevertheless, service of a motion to dismiss pursuant to CPLR 3211 (a) "before service of a pleading responsive to the cause of action . . . sought to be dismissed extends the time to serve the pleading until ten days after service of a notice of entry of the order" (CPLR 3211 [f]). Because a motion to dismiss pursuant to CPLR 3211 (a) "extend[s] the defendant['s] time to answer" pursuant to CPLR 3211 (f), it also "extend[s] the time in which the [claimant] could amend [its claim] as of right" (STS Mgt. Dev. v New York State Dept. of Taxation & Fin., 254 AD2d 409, 410 [2d Dept 1998]; see D'Amico v Correctional Med. Care, Inc., 120 AD3d 956, 957 [4th Dept 2014]; Johnson v Spence, 286 AD2d 481 483 [3d Dept 2001]; John R. Higgitt, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR 3211:67, p. 199). The amended claim, therefore, would ordinarily "supersede[] the original [claim] and [would become] the operative pleading in th[e] action" (Delmaestro v Marlin, 168 AD3d 813, 815 [2d Dept 2019]; see Golia v Vieira, 162 AD3d 863, 864 [2d Dept 2018]). However, it is well settled that a jurisdictional pleading defect may not be cured by serving an amended claim (see Hogan v State of New York, 59 AD3d 754, 755 [3d Dept 2009]; Roberts v State of New York, 4 Misc 3d 768, 774 [Ct Cl 2004]), and thus the initial pleading is the operative pleading for the purpose of determining whether the claim is jurisdictionally compliant.
Here, the initial claim alleges merely that claimant's property "was not with [him]" on May 22, 2018 when he was transferred from Five Points CF to Green Haven CF (Claim No. 133063, ¶ 2) and demands damages of over $4,000. The initial claim contains no further details regarding the circumstances under which claimant's property was allegedly lost or identifying the items of property allegedly lost; rather, those details are supplied in the amended claim filed in response to the motion to dismiss. Therefore, the initial claim was jurisdictionally defective for failing to provide sufficient details to allow defendant to investigate the claim (see Murray v State of New York, UID No. 2017-041-079 [Ct Cl, Milano, J., Nov. 13, 2017 [claim that failed to "list any specific items of lost property" dismissed for failure to comply with Court of Claims Act § 11 (b)]; cf. Davis v State of New York, UID No. 2018-038-582 [Ct Cl, DeBow, J., Sept. 20, 2018] [claim that included itemized list of each piece of personal property allegedly lost during inventory and their total value satisfied pleading requirements of Court of Claims Act § 11 (b)]), and must be dismissed.
Finally, although defendant further argues that the claim must be dismissed as untimely because it was served on the Attorney General "on May 13, 2019, significantly more than 120 days following the alleged incidents in the Claim" (Kyles Affirmation in Support of Motion to Dismiss [M-94206], ¶ 7), as noted above, the 120-day period for filing a lost property claim runs from the date a claimant exhausts the administrative remedies, not the date on which the property was allegedly lost. Because claimant failed to exhaust his administrative remedies, the 120-day period was never triggered, and thus, the Court declines to dismiss the claim on the ground of untimeliness.
It is well settled that a jurisdictionally defective claim cannot be cured by amendment and that a claim that has been dismissed cannot be amended. Accordingly, defendant's motion to dismiss the amended claim (M-94480) must be granted, and the amended claim must be stricken (see Toliver v State of New York, UID No. 2018-053-536 [Ct Cl, Sampson, J., July 2, 2018]; Bennett v State of New York, UID No. 2016-015-139 [Ct Cl, Collins, J., June 13, 2016]).
Had the Court denied defendant's motion to dismiss the original pleading, it would have been constrained to deny defendant's motion to dismiss the amended pleading on the ground that, as noted above, claimant's time to amend the claim as of right was extended by defendant's motion to dismiss the original pleading (see STS Mgt. Dev., 254 AD2d at 410).
Accordingly, it is
ORDERED, that defendant's motion number M-94206 is GRANTED, and claim number 133063 is hereby DISMISSED; and it is further
ORDERED, that defendant's motion number M-94480 is GRANTED, and amended claim number 133063 is hereby DISMISSED.
December 23, 2019
Saratoga Springs, New York
W. BROOKS DeBOW
Judge of the Court of Claims Papers considered: 1. Claim number 133063, filed May 9, 2019; 2. Correspondence of Terrence Maynard, dated May 22, 2019; 3. Notice of Motion to Dismiss Claim (M-94206), dated June 11, 2019; 4. Affirmation of Ray A. Kyles, AAG, in Support of Motion to Dismiss (M-94206), dated June 11, 2019, with Exhibit A; 5. Notice of Motion in Response to Dismiss Claim (M-94206), undated; 6. Maynard Affirmation in Support of Motion in Response to Dismiss Claim (M-94206), undated; 7. Correspondence of Terrence Maynard, dated June 27, 2019; 8. Amended Claim number 133063, filed July 8, 2019, with unenumerated exhibits; 9. Notice of Motion to Dismiss Amended Claim (M-94480), dated August 20, 2019; 10. Affirmation of Ray A. Kyles, AAG, in Support of Defendant's Motion to Dismiss Amended Claim (M-94480), dated August 20, 2019, with Exhibits A-C; 11. Notice of Motion in Response to Dismiss Claim (M-94480), dated November 24, 2019; 12. Affirmation of Terrence Maynard in Support of Motion in Response to Dismiss Claim (M- 94480), dated November 24, 2019.