Defendant's motion to dismiss granted for improper manner of service (first class mail) and failure to state a cause of action.
|Claimant short name:||ANDERSON|
|Footnote (claimant name) :|
|Defendant(s):||STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||W. BROOKS DeBOW|
|Claimant's attorney:||No Appearance|
|Defendant's attorney:||LETITIA JAMES, Attorney General
of the State of New York
By: Douglas R. Kemp, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||August 2, 2019|
|See also (multicaptioned case)|
Claimant, an individual incarcerated in a State correctional facility, filed this claim seeking monetary compensation for damages allegedly sustained as a result of defendant's denial of his request to attend the funeral for his deceased son. Defendant moves to dismiss the claim on the grounds that the Court lacks jurisdiction and that the claim fails to state a cause of action. Claimant has not submitted any papers in opposition to the motion.
Defendant asserts that the Court lacks jurisdiction over the claim because it was served by ordinary mail. 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 , rearg denied 96 NY2d 855 ; 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]).
It is well settled that an affidavit of service "establishes a prima facie case as to the method of service and, therefore, gives rise to a presumption of proper service" (Caci v State of New York, 107 AD3d 1121, 1123 [3d Dept 2013]; see TD Banknorth, N.A. v Olsen, 112 AD3d 1169, 1170 [3d Dept 2013]; D'Ambra v Haynor, 293 AD2d 858, 859 [3d Dept 2002]), which can be rebutted by a sworn denial of the party that was allegedly served containing "detailed and specific contradiction[s] of the allegations" in the affidavit of service (Dunn v Pallett, 42 AD3d 807, 809 [3d Dept 2007] [internal quotation marks omitted], appeal after remand 66 AD3d 1179 [3d Dept 2009]; see Carver Fed. Sav. Bank v Shaker Gardens, Inc., 135 AD3d 1212, 1213 [3d Dept 2016]; Caci, 107 AD3d at 1123).
Here, the affidavit of service that was sworn to on January 9, 2018 recites that claimant
"placed accurate, correct and true copies of the above described documents in a properly addressed envelope and filled out the necessary forms to have the New York State, Department of Corrections and Community Supervision's ("DOCCS") employee(s) at Attica Correctional Facility . . . either use my free legal mail postage, authorize the advancement of funds, or use funds from my prisoner inmate account to purchase U.S. Mail postage and affix same to said envelope and, then place same in the care and control of said DOCCS employee(s) to process and mail the aforementioned documents by U.S. Postal Services via certified mail with return receipt requested to"
the Attorney General (see Affidavit of Service of Melvin Anderson, sworn to Jan. 9, 2018). Based on that recitation, the affidavit of service does not give rise to the presumption that the claim was properly served on defendant by CMRRR inasmuch as it recites merely that claimant took steps to serve the claim by CMRRR, not that the claim was indeed served by CMRRR. In support of its motion to dismiss, defendant has shown that the claim was served on the Attorney General on January 16, 2018 not by CMRRR, but by regular first class mail, and claimant has not opposed the motion and therefore has not controverted this showing (see Kemp Affirmation, ¶¶ 4, 11, Exhibits B-C).(1) The jurisdictional defense was preserved by defendant as it was raised with particularity in its verified answer (see id., Exhibit C [Verified Answer, Sixth Affirmative Defense]; Court of Claims Act § 11 [c] [ii]). Thus, the claim must be dismissed on jurisdictional grounds due to claimant's failure to serve the claim by CMRRR.(2)
Even assuming the claim had been properly served, the claim would be dismissed under defendant's alternative ground for dismissal. On a motion to dismiss a claim for failure to state a cause of action,
"claimant's claim is liberally construed and all facts asserted therein . . . are accepted as true. Where, as here, the motion is premised upon claimant's failure to state a claim, the dispositive inquiry is whether it has a cause of action and not whether one has been stated, i.e., whether the facts as alleged fit within any cognizable legal theory"
(IMS Engrs.-Architects, P.C. v State of New York, 51 AD3d 1355, 1356 [3d Dept 2008] [internal quotation marks and citations omitted], lv denied 11 NY3d 706 ). The claim alleges that claimant's biological son passed away while claimant was incarcerated and that claimant's request for a funeral visit was denied by correction officials. The claim alleges a violation of claimant's state constitutional rights and alleges injuries in the nature of physical and emotional pain and suffering.
Defendant is correct in arguing that the claim fails to state a cause of action because the authority of the Commissioner of the Department of Corrections and Community Supervision to permit inmates to make funeral visits is discretionary, and inmates do not have an enforceable constitutional or statutory right to such visits that could give rise to a cognizable cause of action (see Kemp Affirmation, ¶¶ 14-15, citing Correction Law § 113; Rivera v State of New York, 169 AD2d 885, 885-886 [3d Dept 1991], lv denied 77 NY2d 807 ; Mitchell v State of New York, UID No. 2012-040-001 [Ct Cl, McCarthy, J., Jan. 9, 2012]). Moreover, neither does the claim state a cognizable claim against the state sounding in negligent infliction of emotional distress, as such claim is generally available only where there is "conduct that unreasonably endangers the [claimant's] physical safety" (Losquadro v Winthrop Univ. Hosp., 216 AD2d 533, 534 [2d Dept 1995]), or in other narrowly circumscribed circumstances that are inapplicable to this claim (see e.g. Ornstein v New York City Health & Hosps. Corp., 10 NY3d 1, 8-11  [exposure to HIV virus]; Martinez v Long Is. Jewish Hillside Med. Ctr., 70 NY2d 697  [mental anguish from unnecessarily terminating pregnancy based upon erroneous medical advice]; Johnson v State of New York, 37 NY2d 378, 382  [negligent mishandling of a corpse or incorrect notification of the death of a close relative]). Finally, to the extent that the claim asserts a cause of action for intentional infliction of emotional distress, it is well-settled that such claims against the State of New York are barred as a matter of public policy (see Brown v State of New York, 125 AD2d 750, 752 [3d Dept 1986], lv dismissed 70 NY2d 747 ).
Accordingly, it is
ORDERED, that defendant's motion number M-93751 is GRANTED, and claim number 130874 is hereby DISMISSED.
August 2, 2019
Saratoga Springs, New York
W. BROOKS DeBOW
Judge of the Court of Claims
(1) Claim Number 130874, filed January 19, 2018;
(2) Affidavit of Service of Melvin Anderson, sworn to January 9, 2019;
(3) Notice of Motion, dated April 4, 2019;
(4) Affirmation of Douglas R. Kemp, AAG, in Support of Motion to Dismiss, dated April 4, 2019, with Exhibits A-C;
(5) Affidavit of Service of Amber J. Grant, sworn to April 5, 2019.
1. Although the Assistant Attorney General defending this claim asserted that the claim was served on January 18, 2018 and that a copy of the envelope in which the claim was sent was contained within Exhibit B (see Kemp Affirmation, ¶ 4), the claim was actually served on January 16, 2018 and the copy of the envelope was actually contained within Exhibit C.
2. To the extent the claim may have been improperly served by regular mail by prison officials at Attica Correctional Facility (CF) despite claimant's request that they do so by CMRRR (see Affidavit of Service of Melvin Anderson, sworn to Jan. 9, 2018), defendant is not estopped from raising the defense of improper service, for the reasons that follow. The State's "legal obligation to allow prisoner suits . . . includes the allowance of proper proof of service" (Wattley v State of New York, 146 Misc 2d 968, 970 [Ct Cl 1990]). "If an inmate requests that a document be filed by certified mail, return receipt requested, but prison authorities for some reason simply put it in regular mail, their failure to carry out the inmate's directions estops the State from raising the defense of improper service" (Espinal v State of New York, 159 Misc 2d 1051, 1054-1055 [Ct Cl 1993]). For estoppel to be warranted, however, there must be some "evidence in the record of misfeasance or malfeasance on the part of facility officials" (Tuszynski v State of New York, 156 AD3d 1472, 1473 [4th Dept 2017] [internal quotation marks omitted]; see Butler v State of New York, 126 AD3d 1247, 1247 [3d Dept 2015]). Because, as noted above, claimant has not opposed defendant's motion, he has failed to submit any evidence of misfeasance or malfeasance by Attica CF officials in the mailing of his claim, and defense is not estopped from obtaining dismissal of this claim (see Espinal v State of New York, UID No. 2014-039-401 [Ct Cl, Ferreira, J., Mar. 21, 2014] [declining to estop defendant from obtaining dismissal of the claim for failure to serve by CMRRR because "claimant . . . failed to submit evidence establishing that his failure to serve the Attorney General by (CMRRR) was the result of misfeasance or malfeasance by the State"]).