Encarnacion v. State of New York

Appellate Division of the Supreme Court of New York

Encarnacion v. State of New York

133 A.D.3d 1049, 19 N.Y.S.3d 199

CourtAppellate Division of the Supreme Court of the State of New York

DecidedNovember 19, 2015

Docket518407

StatusPublished

Cited by2 cases

This text of 133 A.D.3d 1049 (Encarnacion v. State of New York) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Encarnacion v. State of New York, 133 A.D.3d 1049, 19 N.Y.S.3d 199 (N.Y. Ct. App. 2015).

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Opinion

Rose, J.

Appeal from an order of the Court of Claims (Collins, J.), entered January 29, 2014, which denied claimant’s ap *1050 plication pursuant to Court of Claims Act § 10 (6) for permission to file a late claim.

Claimant, an inmate, filed a claim seeking reimbursement for the value of certain personal property missing from his cell following a cell search. He served the claim on defendant by regular mail on July 29, 2013, and the 120-day period for filing a valid claim expired on August 7, 2013 (see Court of Claims Act § 10 [9]). Defendant served an answer raising as an affirmative defense the lack of personal and subject matter jurisdiction based upon claimant’s failure to serve the claim by certified mail, return receipt requested as required by Court of Claims Act § 11 (a) (i). Thereafter, claimant made a pro se application for permission to file a late claim. The Court of Claims denied claimant’s application and he now appeals.

We affirm. The provisions of Court of Claims Act § 10 (6) that vest the Court of Claims with discretionary authority to permit the filing of a late claim do not apply to inmate property claims (see Roberts v State of New York, 11 AD3d 1000, 1001 [2004]). Given that the claim here involves the loss of claimant’s property following a cell search, his application for permission to file a late claim was properly denied. Significantly, claimant’s failure to comply with the provisions of Court of Claims Act § 11 (a) (i) requiring that the claim be served upon the Attorney General either personally or by certified mail, return receipt requested, is jurisdictional in nature (see Brown v State of New York, 114 AD3d 632, 632 [2014]; Zoeckler v State of New York, 109 AD3d 1133, 1133 [2013]). In view of this, and given that defendant raised it as an affirmative defense, the claim must be dismissed (see Zoeckler v State of New York, 109 AD3d at 1133). We have considered petitioner’s remaining contentions and find them to be lacking in merit.

Garry, J.P., Egan Jr. and Clark, JJ., concur. Ordered that the order is affirmed, without costs, and claim dismissed.

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Rose, J.

Appeal from an order of the Court of Claims (Collins, J.), entered January 29, 2014, which denied claimant’s ap *1050 plication pursuant to Court of Claims Act § 10 (6) for permission to file a late claim.

Claimant, an inmate, filed a claim seeking reimbursement for the value of certain personal property missing from his cell following a cell search. He served the claim on defendant by regular mail on July 29, 2013, and the 120-day period for filing a valid claim expired on August 7, 2013 (see Court of Claims Act § 10 [9]). Defendant served an answer raising as an affirmative defense the lack of personal and subject matter jurisdiction based upon claimant’s failure to serve the claim by certified mail, return receipt requested as required by Court of Claims Act § 11 (a) (i). Thereafter, claimant made a pro se application for permission to file a late claim. The Court of Claims denied claimant’s application and he now appeals.

We affirm. The provisions of Court of Claims Act § 10 (6) that vest the Court of Claims with discretionary authority to permit the filing of a late claim do not apply to inmate property claims (see Roberts v State of New York, 11 AD3d 1000, 1001 [2004]). Given that the claim here involves the loss of claimant’s property following a cell search, his application for permission to file a late claim was properly denied. Significantly, claimant’s failure to comply with the provisions of Court of Claims Act § 11 (a) (i) requiring that the claim be served upon the Attorney General either personally or by certified mail, return receipt requested, is jurisdictional in nature (see Brown v State of New York, 114 AD3d 632, 632 [2014]; Zoeckler v State of New York, 109 AD3d 1133, 1133 [2013]). In view of this, and given that defendant raised it as an affirmative defense, the claim must be dismissed (see Zoeckler v State of New York, 109 AD3d at 1133). We have considered petitioner’s remaining contentions and find them to be lacking in merit.

Garry, J.P., Egan Jr. and Clark, JJ., concur. Ordered that the order is affirmed, without costs, and claim dismissed.

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133 A.D.3d 1049, 19 N.Y.S.3d 199, Counsel Stack Legal Research, https://law.counselstack.com/opinion/encarnacion-v-state-of-new-york-nyappdiv-2015.

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