New York State Court of Claims

New York State Court of Claims

FRANK v. THE STATE OF NEW YORK, #2000-009-401, Claim No. 101768, Motion No. M-61251


Dismissal of the claim granted based upon untimely service and filing, as well as failure to exhaust administrative remedies under Court of Claims Act, § 10(9).

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant's attorney:
Defendant's attorney:
Attorney General
BY: Timothy P. Mulvey, Esq.,
Assistant Attorney General, Of Counsel.
Third-party defendant's attorney:

Signature date:
April 25, 2000

Official citation:

Appellate results:

See also (multicaptioned case)


Defendant has brought this motion seeking an order dismissing the claim based upon untimely service and for failure to exhaust administrative remedies.

The following papers were considered by the Court in connection with this motion:
Notice of Motion, Affirmation, with Exhibits 1,2

Filed Papers: Claim.

By his filed claim, claimant alleges that on August 27, 1999, while he was incarcerated at Cape Vincent Correctional Facility, correction officers confiscated certain legal papers of the claimant, and refused to return them despite claimant's repeated demands. Claimant further alleges that these legal papers were needed by him in connection with an immigration appeal, and that his appeal was denied on October 28, 1999, at which time he claims this cause of action accrued.

Defendant now seeks to dismiss this claim, arguing that the cause of action accrued not on October 28, 1999, but on August 27, 1999, when the papers were allegedly confiscated from claimant. Claimant has not submitted any papers in opposition to this motion, nor has he otherwise contacted the Court in any manner whatsoever regarding the pending motion.

As set forth in the affirmation submitted with this motion (Item 2), claimant served a notice of intention to file a claim on the Attorney General on December 31, 1999. He then filed his claim with the Court on January 13, 2000, and served his claim on the Attorney General on January 14, 2000.

It is clear to this Court that any claim alleging damages arising from the seizure of claimant's legal papers accrued on the date that such papers were confiscated, August 27, 1999. Accordingly, pursuant to Court of Claims Act, § 10(3) and/or § 10(3-b), claimant had 90 days from such date to serve and file his claim, unless a written notice of intention to file a claim was served on the Attorney General within such 90 day period.

The service of the notice of intention upon the Attorney General on December 31, 1999, was not served within 90 days of accrual of the cause of action and is considered a nullity. It therefore did not extend the time in which to file and serve a claim.

The claim was also served and filed well beyond the 90 days provided in Court of Claims Act, § 10(3) and § 10(3-b). The service and filing requirements of the Court of Claims Act are jurisdictional prerequisites to the institution and maintenance of a claim against the State and therefore must be strictly construed (Finnerty v New York State Thruway Authority, 75 NY2d 721; Byrne v State of New York, 104 AD2d 782, lv denied 64 NY2d 607). This claim, therefore, must be dismissed.

Additionally, defendant seeks dismissal of the claim based upon the claimant's failure to exhaust administrative remedies.

At the time this claim arose, claimant was an inmate in the custody of the New York Department of Correctional Services. Pursuant to Court of Claims Act, § 10(9)[1], any claim of an inmate seeking to recover damages for injury to or loss of personal property "may not be filed unless and until the inmate has exhausted the personal property claims administrative remedy, established for inmates by the department." Since this claim was filed on January 13, 2000, the provisions of § 10(9) are hereby found to be applicable to this claim. Defendant has submitted a memorandum (Exhibit C to Items 1,2), indicating that the claimant has not pursued any administrative remedies concerning the loss of his legal documents. Dismissal of this claim, therefore, is also warranted pursuant to Court of Claims Act, § 10(9).

Accordingly, it is

ORDERED, that Motion No. 61251 is hereby GRANTED; and it is further

ORDERED, that Claim No. 101768 is hereby DISMISSED.

April 25, 2000
Syracuse, New York

Judge of the Court of Claims

[1] Added by Chapter 412 of the Laws of 1999, effective December 7, 1999.