Opinion
# 2014-038-547 Claim No. 123138 Motion No. M-85137 Motion No. M-85266
09-18-2014
DEMETRIUS WHITAKER v. THE STATE OF NEW YORK
DEMETRIUS WHITAKER, Pro se ERIC T. SCHNEIDERMAN, Attorney General of the State of New York By: Paul F. Cagino, Assistant Attorney General
Synopsis
Defendant's motion to dismiss inmate's claim for negligent bailment granted. Claim was not timely served or filed, and was not served by CMRRR. Notice of intention to file bailment claim is ineffective, and, to the extent claimant relied on erroneous advice of law library clerks, he has not demonstrated that any misfeasance or malfeasance by defendant's employees caused the jurisdictional defects, and thus estoppel will not lie.
Case information
| UID: | 2014-038-547 |
| Claimant(s): | DEMETRIUS WHITAKER |
| Claimant short name: | WHITAKER |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 123138 |
| Motion number(s): | M-85137, M-85266 |
| Cross-motion number(s): | |
| Judge: | W. BROOKS DeBOW |
| Claimant's attorney: | DEMETRIUS WHITAKER, Pro se |
| Defendant's attorney: | ERIC T. SCHNEIDERMAN, Attorney General of the State of New York By: Paul F. Cagino, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | September 18, 2014 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant, an individual who is incarcerated in a State correctional facility, filed this claim in which he seeks compensation for personal property that was damaged by water while being stored in a basement at Upstate Correctional Facility. The claim alleges that in response to his administrative claim and his appeal therefrom, claimant was offered compensation for his property, but that he did not accept those offers, and the final action on his administrative claim occurred on November 16, 2012. Claimant served this judicial claim on August 22, 2013 and filed it on August 23, 2013. Defendant has made a motion to dismiss the claim on jurisdictional grounds, contending that the claim was not timely filed and served and that it was not served by certified mail, return receipt requested (CMRRR) (M-85137). Claimant does not dispute defendant's contentions, but he has responded with an "omnibus" motion in which he seeks permission to file his claim by regular mail and to extend the time to plead, and also seeks summary judgment on the claim (M-85266).
Claimant opposed defendant's motion on several procedural grounds (see Omnibus Motion, ¶ 8). He contends that the courts do not strictly apply time requirements to pro se actions by inmates because of the various circumstances attendant to their incarceration, and he cites Matter of Oronato v Scully (170 AD2d 803 [3d Dept 1991]) and Matter of Hanson v Coughlin (103 AD2d 949 [3d Dept 1984]), decisions in Article 78 proceedings that were commenced by orders to show cause in Supreme Court. Here, however, where claimant seeks to prosecute an action in the Court of Claims, he must comply with Court of Claims Act § 11, the requirements of which "are jurisdictional in nature and, therefore, must be strictly construed" (see Finnerty v New York State Thruway Auth., 75 NY2d 721, 722-723 [1989]). Any authority exercised by Supreme Court to afford inmates latitude or deference with regard to the time or manner service of Article 78 petitions cannot be exercised in the Court of Claims.
Claimant relies on CPLR 3211(e) for the proposition that this Court may extend the time to plead an action, and implies that this Court may extend his time to serve this claim. Such reliance is misplaced because, in the first instance, CPLR 3211(e) pertains to extension of the time to make a motion to dismiss a pleading, not an extension of the time to serve a complaint or claim. Further, to the extent that claimant is asserting that defendant's subject matter jurisdiction defenses were waived because the motion to dismiss was not made within 60 days of the service of defendant's answer as required by CPLR 3211(e), that provision is inapplicable to claims in the Court of Claims (see Zoeckler v State of New York, 109 AD3d 1133 [4th Dept 2013]; Crenshaw v State of New York, UID No. 2012-038-575 [Ct Cl, DeBow, J., Oct. 30, 2012]).
Finally, claimant objects to defendant's motion on the ground that the affidavit of service for the motion papers incorrectly states that the papers were served on May 19, 2013, and that the notarization on the affidavit of service is dated September 19, 2014, some 3 months after the date of claimant's papers dated June 11, 2014, and that service of the motion was defective. Although claimant correctly asserts that the affidavit of service bears incorrect dates, he does not dispute that he was, in fact, served with defendant's motion papers, and he has had the opportunity to respond fully. Thus the Court will disregard the errors in the affidavit of service (see CPLR 2101 [f]).
Turning to the merits of defendant's motion to dismiss the claim, Court of Claims Act § 11 (a) (1) requires, among other things, that a copy of the claim "shall be served personally or by certified mail, return receipt requested, upon the attorney general" and that such service be effected "within the times hereinbefore provided for filing with the clerk of the court." Court of Claims Act § 10 (9) requires that a bailment claim such as this be filed and served within 120 days of the exhaustion of claimant's administrative remedies. It is well established that failure to serve the claim in accordance with the requirements of Court of Claims Act § 11 is a jurisdictional defect that requires dismissal of the claim (see Finnerty v New York State Thruway Auth. at 722-723; Spaight v State of New York, 91 AD3d 995 [3d Dept 2012]; Rodriguez v State of New York, 307 AD2d 657 [3d Dept 2003]). Defendant has preserved these jurisdictional defenses by raising them with particularity in its answer (see Cagino Affirmation, Exhibit B [Third and Fourth Affirmative Defenses]; see also Court of Claims Act § 11 [c]).
Appended to the claim is an affidavit of service sworn to on January 18, 2013 by claimant stating that he served a "Notice of Intention" on the Attorney General by CMRRR on November 29, 2012, along with a copy of a receipt indicating that the certified mail was received by the Attorney General's Office on November 29, 2012. However, while Court of Claims Act §§ 10 and 11 provide that a timely and properly served notice of intention will extend the time within which to file a serve a claim that sounds in tort, service of a notice of intention does not operate to extend the time within to file and serve a claim for lost or destroyed property as set forth in Court of Claims Act § 10 (9) (see Pristell v State of New York, 40 AD3d 1198 [3d Dept 2007]; McTier v State of New York, UID # 2008-030-511 [Ct Cl, Scuccimarra, J., Mar. 6, 2008]). Thus, the jurisdictional viability of this claim turns on the timeliness and manner of service of the claim itself.
As noted above Court of Claims Act § 10 (9) requires this claim to have been filed and served by March 16, 2013, which was 120 days after the date of the exhaustion of claimant's administrative remedies, which occurred on November 16, 2012 when claimant's administrative appeal was disapproved (see Claim No. 123138, Exhibit I). The claim was not served and filed until August 22 and 23, 2013, respectively (see Claim No. 123138 and Cagino Affirmation, Exhibit A), and was therefore clearly untimely.
Further, the claim was not served by CMRRR. A copy of the envelope in which the claim was mailed to the Attorney General is appended to defendant's motion (see Cagino Affirmation, Exhibit A), bearing what appears to be first class postage and lacking any indicia that it was mailed by CMRRR, as required by Court of Claims Act § 11 (a). In his submission on his omnibus motion, claimant does not dispute that he served the claim by ordinary first class mail, but seeks the Court's permission to serve defendant by regular mail "due to financial hardship and claimant's incarceration, which makes personal service or certified service improbable" (Claimant's Omnibus Motion, at p.1). Claimant also asserts that he was "misinformed by law library clerks . . . [and] was told to send by certified mail a notice of intent, and afterward, could send the claim via regular mail, within 1 year of the claim" (id. p.3, ¶ 8). As noted above, this Court may not excuse claimant's strict compliance with the service requirements of the Court of Claims Act due to financial hardship or the obstacles caused by claimant's incarceration. Further, because claimant offers no proof that his failure to timely or properly serve the Attorney General with the claim was due to any misfeasance or malfeasance on the part of correctional facility officials, defendant would not be estopped from asserting the jurisdictional defenses upon which it relies (cf. Rivera v State of New York, 5 AD3d 881, 881 [3d Dept 2004]; Lamage v State of New York, UID No. 2006-015-140 [Ct Cl, Collins, J., Dec. 22, 2006]).
Inasmuch as the Court lacks jurisdiction over the claim, that part of claimant's motion seeking summary judgment need not be considered. To the extent that claimant's omnibus motion seeks permission to file a late claim, it cannot be granted because such relief is not available for inmate bailment claims (see Roberts v State of New York, 11 AD3d 1000, 1001 [4th Dept 2004]; White v State of New York, UID No. 2013-041-069 [Ct Cl, Milano, J., Nov. 25, 2013]).
Accordingly, it is
ORDERED, that motion number M-85137 is GRANTED, and claim number 123138 is DISMISSED;
ORDERED, that motion number M-85266 is DENIED.
September 18, 2014
Albany, New York
W. BROOKS DeBOW
Judge of the Court of Claims
Papers considered:
(1) Claim number 123138, filed August 23, 2013, with Exhibits A-I;
(2) Verified Answer, filed September 26, 2013;
(3) Notice of Motion to Dismiss, dated May 19, 2014;
(4) Affirmation of Paul F. Cagino, AAG, in Support of Motion to Dismiss, dated May 19, 2014,
with Exhibits A-D;
(5) Affidavit of Service of Valerie Paul, sworn to on September [sic] 19, 2014;
(6) Claimant's Omnibus Motion, dated June 11, 2014;
(7) Affirmation of Paul F. Cagino, AAG, in Opposition to Claimant's Motion for Summary
Judgment, dated June 23, 2014, with Exhibit 1;
(8) "Affirmation" of Demetrius Whitaker in Support of Reply and Summary Judgment, dated
July 21, 2014, with Attachments.