Defendant's motion for summary judgment to dismiss the claim for lack of jurisdiction is granted. Claimant served his first notice of intention by regular mail, which is not an authorized method of service. As a result, the notice of intention is a nullity and does not extend claimant's time to serve a claim. The claim was served more than ninety days after the claim accrued and although served by certified mail, return receipt requested, the claim is jurisdictionally defective as it was not timely served. Claimant failed to comply with the time limitations and the manner of service requirements of Court of Claims Act 11 (c).
|Claimant short name:||GRAY|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||J. DAVID SAMPSON|
|Claimant's attorney:||MARCO GRAY, Pro Se
|Defendant's attorney:||HON. ERIC T. SCHNEIDERMAN
New York State Attorney General
BY: Timothy J. Flynn, Esq.
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||October 30, 2017|
|See also (multicaptioned case)|
Claimant, a former inmate proceeding pro se, alleges in claim no. 123843 that he was wrongfully confined to the Special Housing Unit (SHU) while incarcerated at Gowanda Correctional Facility (Gowanda). Defendant moves for summary judgment to dismiss the claim for lack of jurisdiction. Claimant fails to appear or otherwise oppose defendant's motion.
Court of Claims Act §§ 10 (3) and 11(a) (i), provide that a claim for damages allegedly caused by the negligence of an officer or employee of the State of New York must be filed and a copy served upon the Attorney General personally or by certified mail, return receipt requested, within ninety (90) days of accrual of the claim, unless the Claimant shall within the same ninety (90) day period serve upon the Attorney General personally or by certified mail, return receipt requested, a notice of intention to file a claim, in which event the claim shall be filed and served within two years after accrual of the claim. 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 properly serve a copy of a notice of intention or of the claim within the requisite ninety (90) day period divests the Court of jurisdiction requiring dismissal of the claim (Ivy v State of New York, 27 AD3d 1190 [4th Dept 2006]). Defendant alleges that neither a notice of intention nor the claim was properly served within the requisite ninety (90) day period.
It is alleged in the claim that claimant was wrongfully confined to SHU at Gowanda from September 26, 2013 to October 3, 2013, when he was released from SHU. A cause of action for wrongful confinement accrues on the date that the claimant is released from confinement (Campos v State of New York, 139 AD3d 1276 [3d Dept 2016]; Santiago v City of Rochester, 19 AD3d 1061 [4th Dept 2005]). Thus, to be timely, claimant had to properly serve a notice of intention to file a claim or a claim within ninety (90) days of October 3, 2013, or by January 2, 2014.
In the supporting affirmation, Assistant Attorney General Flynn asserts that claimant served his first notice of intention by regular mail on November 4, 2013, within ninety (90) days of accrual of the claim (Defendant's Exhibit A). Defendant included within Exhibit A a copy of the envelope in which the first notice of intention was served. The postage on this envelope amounted to $0.46 and 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 and thus, the notice of intention is a nullity and does not effectively extend claimant's time within which to serve a claim (see Miranda v State of New York, 113 AD3d 943 [3d Dept 2014]).
Also attached to Attorney Flynn's affirmation as Exhibit B is a copy of the second notice of intention claimant served on November 29, 2013 upon the Attorney General's Office and a copy of the envelope in which it was served. The second notice of intention was also a nullity as it was apparently served by regular mail as there is no indicia on the envelope in that it was served by certified mail, return receipt requested. Thus, the second notice of intention, like the first notice of intention, failed to extend claimant's time within which to serve a claim.
On February 18, 2014, more than ninety (90) days after the claim accrued, claimant served the claim by certified mail, return receipt requested (Defendant's Exhibit C). As a result, the claim is jurisdictionally defective as it was not timely served (Dreger v New York State Thruway Auth., 81 NY2d 721 ).
Defendant properly raised in its answer as affirmative defenses claimant's failure to comply with the time limitations and the manner of service requirements as mandated by Court of Claims Act § 11 (c).
Based on the foregoing, defendant's motion no. M-90722 is granted and claim no. 123843 is dismissed.
October 30, 2017
Buffalo, New York
J. DAVID SAMPSON
Judge of the Court of Claims
The following were read and considered by the Court:
1. Notice of motion and affirmation of Assistant Attorney General Timothy J. Flynn dated July 6, 2017, with annexed Exhibits A-D.