Opinion
# 2019-028-530 Claim No. 131749 Motion No. M-92464 Motion No. M-92669
05-23-2019
SHERWIN THOMPSON v. THE STATE OF NEW YORK
SHERWIN THOMPSON, PRO SE HON. LETITIA JAMES, ATTORNEY GENERAL BY: Matthew H. Feinberg, Esq. Assistant Attorney General
Synopsis
Case information
| UID: | 2019-028-530 |
| Claimant(s): | SHERWIN THOMPSON |
| Claimant short name: | THOMPSON |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 131749 |
| Motion number(s): | M-92464, M-92669 |
| Cross-motion number(s): | |
| Judge: | RICHARD E. SISE |
| Claimant's attorney: | SHERWIN THOMPSON, PRO SE |
| Defendant's attorney: | HON. LETITIA JAMES, ATTORNEY GENERAL BY: Matthew H. Feinberg, Esq. Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | May 23, 2019 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
The following papers were read and considered on the pending motions:
1-3 Notice of Motion, Affirmation in Support of Defendant's Motion to Dismiss by Matthew H. Feinberg, Assistant Attorney General, Memorandum of Law and attached exhibit
4 Affidavit in Response to Defendant's Motion to Dismiss the Claim by Sherwin Thompson, Claimant and attached exhibits
5,6 Notice of Motion, Affidavit in Support of Motion for Extension of Time to Serve on Attorney General's Office by Sherwin Thompson, Claimant and attached exhibit
7,8 Affirmation in Opposition to Claimant's Motion for Late Claim Relief by Matthew H. Feinberg, Assistant Attorney General, Memorandum of Law and attached exhibit
9 Filed paper: Claim No. 131479
Sherwin Thompson, an inmate proceeding pro se, alleges in his filed claim that defendant's agents at Sing Sing Correctional Facility failed to secure, or lost, stole or wrongfully destroyed, personal property that had been received in the facility mail room on or about August 2 or 5, 2017. [Claim No. 131479]. More specifically, he alleges that a pair of sneakers and boots that had arrived at the facility were destroyed or stolen, and that he was damaged in the amount of $115.30. He states that his institutional claim was denied on or about October 13, 2017, and that a notice of intention to file a claim was served upon the Attorney General's office on or about April 2, 2018. The claim was filed in the office of the Chief Clerk of the Court of Claims on May 23, 2018. The affidavit of service filed with the claim states only that it was served by mail and does not say when the claim was served (but is notarized on May 11, 2018).
Motion to Dismiss [M-92464]
By way of pre-answer motion, defendant moves to dismiss the claim, alleging that it was served by regular mail only, rather than by a statutorily required method, and that it was untimely served more than 120 days after it accrued.
Court of Claims Act §11(a)(i) provides that a claim must be served personally or by certified mail, return receipt requested, upon the attorney general within the times prescribed in Court of Claims Act §10. Service is complete when it is received in the Attorney General's Office. Court of Claims Act §11(a)(i).
Court of Claims Act §10(9) provides that an inmate's claim for loss of personal property - such as this one - 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). Additionally, "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, 1198-1199 (3d Dept 2007).
To have been timely, a claim accruing when the claimant's institutional claim was denied "on or about October 13, 2017" should have been served and filed by February 10, 2018. [Claim No. 131479, ¶7].
It is generally preferable that the State's submission on a motion to dismiss on these jurisdictional grounds include an affidavit by a person with knowledge to introduce the State's exhibits and attest to there being no other documents received from the claimant pertinent to the claim, or other facts not properly presented by an attorney's affirmation alone. Nonetheless, defendant's inclusion here of photocopies of the claim documents received with an attorney's affirmation, together with claimant's own admissions and a review of the filed documents, suffices to meet the State's burden on the motion alleging a failure to timely serve the claim by a recognized statutorily required method, and the resulting jurisdictional defect.
The Assistant Attorney General indicates that the Attorney General's office was served by regular mail on May 23, 2018, and that the envelope in which the claim was received shows $.68 postage, and no indicia that certified mail, return receipt service was utilized. [Feinberg Affirmation, ¶4, Exhibit A]. The attached photocopy of the envelope in which the claim was sent confirms that the envelope does not show that appropriate postage for that category of mail was paid, nor is there any indicia of the remains of a green return receipt card. Taken together with an affidavit of service that does not provide the essential information as to how or when the documents referenced including the claim were served, defendant has established that the claim was not timely served by a recognized method, and has raised the issues in a timely motion. Motion for Late Claim Relief [M-92669]
Additionally, in papers submitted in support of his application for late claim relief, claimant also acknowledges that the claim was served by regular mail only on May 23, 2018. [Thompson Affidavit in Support of Motion for Extension of Time to Serve Claim on Attorney General's Office,¶3].
Claimant's citation to Canales v State of New York, 51 Misc3d 648 (Ct Cl 2015), which concerned the issue of failure to comply with a Court directed time frame for service, rather than a statutorily required and jurisdictionally significant one, is inapposite. --------
Although styled as an application for an "extension of time to properly serve claim" upon the Attorney General's office, nunc pro tunc relief is not generally available in the Court of Claims when a claim is untimely made, and claimant's motion is treated as one for late claim relief. See e.g., De Barros v State of New York, UID No. 2011-030-525 (Ct Cl, Scuccimarra, J., Mar. 1, 2011).
More significantly, late claim relief is not available under Court of Claims Act §10(6) in any event for inmate property loss claims such as this one. 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, 40 AD3d 1198. The Court does not have the discretionary authority to permit the service and filing of such claims. Encarnacion v State of New York, 133 AD3d 1049, 1050 (3d Dept 2015) lv denied 26 NY3d 919 (2016).
Based on the foregoing, defendant's motion to dismiss [M-92464] is granted, and Claim No. 131749 is hereby dismissed. Claimant's motion for permission to serve and file a late claim [M-92669] pursuant to Court of Claims Act §10(6) is in all respects denied.
May 23, 2019
Albany, New York
RICHARD E. SISE
Judge of the Court of Claims