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
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,
, 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,
Accordingly, it is
ORDERED, that Motion No. 61251 is hereby GRANTED; and it is further
ORDERED, that Claim No. 101768 is hereby DISMISSED.