Spaight v State of New York

Appellate Division of the Supreme Court, Third Department

Jan 5, 2012

511090

Versions:91 AD3d 995

2012 NY Slip Op 00065

Lawrence G. Spaight, Rochester, appellant pro se.

Eric T. Schneiderman, Attorney General, Albany (Marlene O. Tuczinski of counsel), for respondent.

Garry, J. Appeal from an order of the Court of Claims (Hudson, J.), entered April 23, 2010, which, among other things, granted defendant‘s motion to dismiss the claim.

Claimant, an inmate, sought reimbursement of certain personal items that he claims were lost by staff of the Department of Corrections and Community Supervision following his transfer to a special housing unit. After the facility denied his claim, claimant‘s subsequent administrative appeal was disapproved in February 2009. Thereafter, claimant, seeking to commence an action for damages against defendant pursuant to Court of Claims Act § 10 (9),^* attempted to do so by means of service of the claim upon the Attorney General by ordinary mail in March 2009. In defendant‘s May 1, 2009 answer, several affirmative defenses were raised, including lack of subject matter jurisdiction. Later that same month, claimant sent a notice of intention to file a claim to the Attorney General by certified mail, return receipt requested. Defendant moved to dismiss the claim and claimant cross-moved for a change of venue. The Court of Claims granted defendant‘s motion and denied claimant‘s motion as moot, prompting this appeal by claimant.

We affirm. Court of Claims Act § 11 (a) (i) provides that a party seeking to file a claim against defendant must serve a copy of it upon the Attorney General by certified mail, return receipt requested. As the claim here was sent by ordinary mail, the Court of Claims was deprived of subject matter jurisdiction and, therefore, the claim was properly dismissed (see Finnerty v New York State Thruway Auth., 75 NY2d 721, 723 [1989]; Rodriguez v State of New York, 307 AD2d 657, 657 [2003]). Contrary to claimant‘s argument, this fatal defect was not cured by his May 2009 service of a notice of intention to file a claim utilizing the appropriate method of service. There is no provision under Court of Claims Act § 10 (9) of a notice of intention to file a claim as a means of extending the time that a claim may be served or filed (see Pristell v State of New York, 40 AD3d 1198, 1198-1199 [2007]). Even assuming, arguendo, that the May 2009 notice of intention to file a claim was sufficient to meet the prerequisites for a claim, invocation of Court of Claims Act § 10 (8) (a) would be fruitless herein, as the 120-day limit contained in Court of Claims Act § 10 (9) for inmate property claims had already expired (see Bush v State of New York, 60 AD3d 1244, 1245 [2009]).

Claimant‘s remaining contentions, to the extent not specifically addressed herein, have been examined and found to be unpersuasive.

Peters, J.P., Rose, Kavanagh and McCarthy, JJ., concur. Ordered that the order is affirmed, without costs.

Notes

Footnote *: Court of Claims Act § 10 (9) expired on September 1, 2011 (L 1999, ch 412, part D, § 4).