Encarnacion v State of New York

Encarnacion v State of New York 2015 NY Slip Op 08474 Decided on November 19, 2015 Appellate Division, Third Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided and Entered: November 19, 2015
518407

[*1]BERNABE ENCARNACION, Appellant,

v

STATE OF NEW YORK, Respondent.

Calendar Date: October 15, 2015
Before: Garry, J.P., Egan Jr., Rose and Clark, JJ.

Bernabe Encarnacion, Attica, appellant pro se.

Eric T. Schneiderman, Attorney General, Albany (Kathleen M. Treasure of counsel), for respondent.

Rose, J.

MEMORANDUM AND ORDER

Appeal from an order of the Court of Claims (Collins, J.), entered January 29, 2014, which denied claimant's application 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 [*2]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.