Defendant's motion to dismiss for improper manner of service granted. Claimant did not demonstrate that he was entitled to an advance for CMRRR service of the claim upon the Attorney General, nor did he demonstrate any malfeasance by defendant's agents warranting an estoppel.
|Claimant(s):||DAVID SHEARD 13A1702|
|Claimant short name:||SHEARD|
|Footnote (claimant name) :|
|Defendant(s):||STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||W. BROOKS DeBOW|
|Claimant's attorney:||DAVID SHEARD, Pro se|
|Defendant's attorney:||BARBARA D. UNDERWOOD, Attorney General
of the State of New York
By: Jeane L. Strickland Smith, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||May 24, 2018|
|See also (multicaptioned case)|
Claimant, an individual incarcerated in a State correctional facility, filed this claim in which he alleges that he was wrongfully confined at Green Haven Correctional Facility (CF) during three separate periods of time from September 2016 through December 2016. Defendant moves in lieu of answer to dismiss the claim on jurisdictional grounds, asserting that the claim was served by ordinary mail. Claimant opposes the motion.
Court of Claims Act § 11 (a) (i) requires that if a claim is served upon the Attorney General by mail, it must be accomplished by certified mail, return receipt requested (CMRRR). Service of the claim by ordinary mail is insufficient to acquire personal jurisdiction over the defendant (see Govan v State of New York, 301 AD2d 757, 758 [3d Dept 2003], lv denied 99 NY2d 510 ), and the failure to effect service by CMRRR is a jurisdictional defect that requires dismissal of the claim (see Turley v State of New York, 279 AD2d 819 [3d Dept 2001], lv denied 96 NY2d 708 ; Philippe v State of New York, 248 AD2d 827 [3d Dept 1998]; Estrella v State of New York, UID No. 2008-018-634 [Ct Cl, Fitzpatrick, J., Sept. 3, 2008]).
In support of its motion to dismiss, defendant has shown that while a notice of intention to file a claim was served upon the Attorney General by CMRRR on December 27, 2016 (see Strickland Smith Affirmation, ¶ 3, Exhibit A), the claim itself was served on the Attorney General on December 29, 2017 not by CMRRR, but by regular first class mail (see id., ¶ 4, Exhibit B). In opposition, claimant maintains that he attempted to serve the claim by CMRRR, but defendant denied his request to send the claim by CMRRR by returning the claim with a highlighted memorandum (Sheard "Reply Motion", First Paragraph, Exhibit A [Postage Advance Memorandum, dated 3/7/11]). The memorandum states in pertinent part that "[t]he free legal postage (5 x .44 cent = $2.20) can only be used for 1st class postage," and that advances for special handling, which includes certified mail, return receipt, will not be approved unless required by statute, court rule or court order, and that an inmate "must provide justification for [any] such advances" (id.).
In opposition to the motion to dismiss, claimant submits a disbursement request form in the amount of $6.98 for "Certified Mail & Return Receipt 'ONLY' " that was dated December 20, 2017 and stamped "INSUFFICIENT" on December 21, 2017 (see id., Exhibit A [12/20/17 Disbursement Request]). Claimant does not dispute that the claim was served by ordinary mail, but argues in essence that defendant should be estopped from asserting that the claim was not served by CMRRR because his request to send the claim by CMRRR was improperly denied. While estoppel is ordinarily unavailable against the State to overcome a lack of subject matter jurisdiction, the Appellate Division, Third Department has recognized that "[u]nder certain circumstances, the misfeasance or malfeasance of the part of [correctional] facility official may be a proper excuse [for defects in the manner of service] thus warranting estoppel" (Rivera v State of New York, 5 AD3d 881, 881 [3d Dept 2004]). However, claimant has not demonstrated any misfeasance or malfeasance by correction officials that would justify application of estoppel in this matter, for the reasons that follow.
An individual in the custody of the Department of Corrections and Community Supervision (DOCCS) is provided with a weekly postage allowance to pay for five first class letters containing privileged correspondence (see 7 NYCRR § 721.3 [a]  [ii]), which includes correspondence sent to the Office of the Attorney General (see 7 NYCRR § 721.2 [a] ). This allowance, however, "may not be used to pay for any special handling charges such as for certified [mail], return receipt . . . unless such mail services are required by statute, court rule or court order" (7 NYCRR § 721.3 [a]  [ii] [a]). DOCCS regulations provide that "[t]o ensure that indigent inmates maintain their right of access to the courts, the facility shall approve and [sic] IAS 2708 advance request to pay for first class mail postage if the inmate has insufficient funds," provided that: (1) the mail must be legal mail, (2) the balance of the inmate's free weekly postage allowance must be applied to the postage costs, and (3) the requested advance and balance of unpaid previous advances of legal mail postage do not exceed $20 (see 7 NYCRR § 721.3 [a]  [iv] [a]-[c]). Advances for CMRRR will not be approved unless required by statute, court rule or order (see 7 NYCRR § 721.3 [a]  [v]). In the event that the amount of the requested advance and the balance of unpaid previous advances for legal mail exceeds $20, a further advance may be approved provided that "the inmate can show by court rule, court order, a statute of limitations, or other legal deadline applicable to his or her individual circumstance that the legal mail must be sent prior to receipt of the next week's free postage allowance" and also "[t]he inmate must provide justification for such advance" (7 NYCRR § 721.3[a]  [vi]).
It is manifest that an advance for the service of a claim upon the Attorney General by CMRRR is authorized by correctional regulations inasmuch as the Court of Claims Act requires that service by mail must be accomplished by CMRRR (see 7 NYCRR § 721.3 [a]  [v]; Court of Claims Act § 11 [a] [i]), and claimant's submission clearly establishes that his disbursement request for CMRRR was denied for insufficient funds on December 21, 2017. Claimant has not, however, demonstrated that the amount of the requested advance plus unpaid previous advances was less than $20 such that correction officials were required to advance him funds to pay for the mailing, nor has he demonstrated that he provided any justification for an advance in the event that his balance was above $20. Claimant's notation of "Certified Mail & Return Receipt 'ONLY' " on his disbursement request (see Sheard "Reply Motion", Exhibit A [12/20/17 Disbursement Request]) does not state why CMRRR is required, and therefore does not constitute a justification.
Claimant draws the Court's attention to the following language contained in the Postage Advance Memorandum:
"Service on the Attorney General (Notice of Intent) is the ONLY area requiring this special handling procedure, not to the Court of Claims clerk's office. Service on The Attorney General is the only area requiring [special handling] that will allow written statement by inmate on the disbursement form indicating 'Notice of Intent to file a claim' as acceptable justification."
(Sheard "Reply Motion," Exhibit A [emphasis indicates highlighted text]). To the extent that claimant argues that he was not required to provide a justification for CMRRR for a claim because this memorandum requires justification for advance requests only for the service of a notice of intention to file a claim, the Court disagrees. Despite the parenthetical notation and reference to "Notice of Intent" in the memorandum, it also states that "[t]he inmate must provide justification for [special handling] advances" and that "Service on The Attorney General is the only area requiring [special handling] that will allow written statement by inmate on the disbursement form indicating 'Notice of Intent to file a claim' as acceptable justification" (id.). Inasmuch as the claim, as well as a notice of intent to file a claim, must be served upon the Attorney General by CMRRR as required by Court of Claims Act § 11 (a) (i), it is not persuasive to argue that this memorandum distinguishes service of a claim merely by omitting to mention it. In any event, claimant's disbursement request did not reference either a notice of intention or a claim as the justification for sending the mail by CMRRR.
In sum, claimant has not established that he met the conditions necessary for an advance of funds, that approval for the advance request was unreasonably denied, or that there was any misfeasance or malfeasance of the part of Green Haven CF officials in denying claimant's request for CMRRR postage. Thus, estoppel is not warranted, and the claim must be dismissed on jurisdictional grounds due to claimant's failure to serve the claim by CMRRR.
Accordingly, it is
ORDERED, the defendant's motion number M-91754 is GRANTED, and claim number 130515 is DISMISSED.
May 24, 2018
Saratoga Springs, New York
W. BROOKS DeBOW
Judge of the Court of Claims
(1) Claim number 130515, filed November 6, 2017;
(2) Notice of Motion to Dismiss, dated January 29, 2018;
(3) Affirmation of Jeane L. Strickland Smith, AAG, in Support of Motion to Dismiss,
dated January 29, 2018, with Exhibits A-B;
(4) Reply Motion of David Sheard, sworn to February 21, 2018, with Exhibits A-C.