New York State Court of Claims

New York State Court of Claims

MOJICA v. THE STATE OF NEW YORK, #2000-016-097, Claim No. None, Motion No. M-62445


Pro se inmate's property loss late claim motion was denied as moot on the grounds that he had not exhausted his administrative remedies and thus his time for filing had not yet expired.

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):

Alan C. Marin
Claimant's attorney:
Kenneth Mojica
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: James E. Shoemaker, AAG
Third-party defendant's attorney:

Signature date:
November 17, 2000
New York

Official citation:

Appellate results:

See also (multicaptioned case)


This is pro se claimant Kenneth Mojica's motion for permission to file a late claim pursuant to §10.6 of the Court of Claims Act (the "Act"). Mojica's alleges that certain items of his personal property sent out of Sullivan Correctional Facility were missing when the property arrived at Upstate Correctional Facility. He asserts that the claim arose on May 1, 2000.[1] Initially, a threshold issue must be addressed. Section 10 of the Act was amended, effective December 7, 1999 (through December 31, 2002) to add the following subsection 9:

A claim of any inmate in the custody of the department of correctional services for recovery of 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. Such claim must be filed and served within one hundred twenty days after the date on which the inmate has exhausted such remedy.

Mojica states that "[he] filed a claim within [Upstate Correctional] [F]acility, which is currently pending." See ¶3 of Mojica's "Motion for Permission to File Late Notice of Intention to File Claim." As Mojica's internal claim has not yet been determined, the time for him to serve and file a claim has not yet begun to run pursuant to §10.9 of the Act, and in fact he is not permitted to file such a claim at this time.[2]

Accordingly, having reviewed the parties' submissions,[3] IT IS ORDERED that motion no. M-62445 is denied.

November 17, 2000
New York, New York

Judge of the Court of Claims

  1. [1]Section 10.6 of the Act provides that a proposed claim shall accompany a late claim motion. Mojica failed to annex a proposed claim to his motion papers, but this issue need not be reached here.
  2. [2]It might well be noted that §10.6 refers to permitting a late claim for a claimant who fails to satisfy the filing or service requirements of the "foregoing subdivisions," which suggests that a claim arising under subdivision 9 of §10 is not eligible for late claim treatment. In any event, it is unnecessary to reach this issue to decide this motion.
  3. [3]The Court reviewed claimant's "Motion for Permission to File Late Notice of Intention to File Claim" with undesignated exhibit and defendant's affirmation in opposition.