New York State Court of Claims

New York State Court of Claims

GOMEZ v. THE STATE OF NEW YORK, #2000-011-560, Claim No. NONE, Motion No. M-61701


Synopsis


Claimant's motion for permission to late file a claim in which he has alleged negligence on the part of defendant resulting in the loss of certain items of personal property is denied.

Case Information

UID:
2000-011-560
Claimant(s):
JOSELITO GOMEZ
Claimant short name:
GOMEZ
Footnote (claimant name) :

Defendant(s):
STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
NONE
Motion number(s):
M-61701
Cross-motion number(s):

Judge:
THOMAS J. McNAMARA
Claimant's attorney:
Joselito Gomez, Pro Se
Defendant's attorney:
Hon. Eliot Spitzer, Attorney General(Carla T. Rutigliano, Esq,. Assistant Attorney General)
Third-party defendant's attorney:

Signature date:
August 16, 2000
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision


Claimant has moved for permission to late file a claim in which he has alleged negligence on the part of defendant resulting in the loss of certain items of personal property. Generally, when entertaining a motion for permission to late file a claim, the court addresses the six factors enumerated in Court of Claims Act §10(6). Here, however, discussion of each of those factors would serve no purpose because Claimant has failed to comply with Court of Claims Act §10(9) which provides that an inmate in the custody of the Department of Correctional Services may bring a claim in this court for recovery of damages for injury to, or loss of, personal property only after the inmate has exhausted the administrative remedy established by the Department.

The claim process is a two-tier system consisting of an initial review and an appeal (7 NYCRR §1700.3). Here, Claimant filed an institutional claim but did not prosecute an appeal of the initial review. Inasmuch as an appeal of the initial administrative determination was available but not pursued, Claimant has not exhausted the administrative remedy (see, Matter of Jardim v New York State Pub. Empl. Relations Bd., 265 AD2d 329) and therefore, cannot yet pursue the claim in this court. Accordingly, the motion is denied.

August 16, 2000
Saratoga Springs, New York

HON. THOMAS J. MCNAMARA
Judge of the Court of Claims



Papers Considered:

  1. Notice of Motion and Affidavit in Support sworn to the 14th day of April, 2000 with exhibits annexed.
  2. Affirmation in Opposition of Carla T. Rutigliano, Esq., dated June 9, 2000 with exhibits annexed.