6, 7 Filed Papers: Claim; Order setting filing fee, dated February 27,
Upon the foregoing papers, this motion is denied.
In lieu of an answer, the Defendant seeks dismissal of the claim on the grounds
that (1) Claimant failed to exhaust his administrative remedies before filing a
claim sounding in bailment as is prescribed by Court of Claims Act §10(9)
and 7 NYCRR §1700.1 et seq., and (2) the claim was untimely filed in
contravention of Court of Claims Act §10(3-a). Defendant raises
incompatible arguments. On one hand, Defendant asserts that the claim was filed
too soon because Claimant had not exhausted his administrative remedies. On the
other, Defendant argues that Claimant waited beyond 90 days to file and serve
his claim. For the reasons explicated below, neither theory is
Court of Claims Act §10(9) requires that:
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.
Claimant seeks damages for loss of personal property while under the care and
custody of the New York State Department of Correctional Services (DOCS). He
alleges that on or about October 19, 2000, Defendant packed his personal and
state property in five bags for transfer from Auburn Correctional Facility
(Auburn) to Franklin Correctional Facility (Franklin). Upon arriving at
Franklin, one of Claimant's bags was missing. Claimant avers that he submitted
the functional equivalent of an inmate property grievance form at Franklin and
has exhausted his administrative remedies, thereby satisfying §10(9).
Claimant further contends that Defendant itself advised him to file a claim for
his missing property on at least two separate occasions, in effect, declaring
the completion/exhaustion of the internal inmate property grievance procedures.
Moreover, Claimant asserts that his claim was not untimely filed, as filing
occurred within 120 days of when he effectively exhausted his administrative
remedies. I agree.
In part I must determine what constitutes the exhaustion of administrative
remedies. Seven NYCRR §1700.4 requires that an "inmate must report a loss
orally or in writing as soon as possible after its discovery. The report shall
be made to the inmate's block officer, area sergeant, or other area supervisor
and noted in the area log book." Claimant must then file an inmate claim form
within five working days (§1700.6[b]) after the discovery of the loss.
DOCS has a two-tier system of administrative review for inmate personal property
grievances under §1700.3. Initially, such grievances must be filed with
and reviewed by the deputy superintendent for administration or functional
equivalent. The reviewer is then responsible for insuring that the claim is
processed pursuant to the provisions of §1700.3 et seq
. This should
be done within 15 working days of Claimant's filing, and claims should be
disposed within three months. If the inmate desires further review, appeals may
be made to the facility superintendent
On the day Claimant arrived at Franklin, he informed draft-room employee Smith
that one bag of personal property was missing. On or about October 25, 2000,
Claimant wrote a letter to the Superintendent at Franklin entitled "Lost Legal
Documents & Personal Property." Institution Steward Debbie Keysor
purportedly replied in writing on or about November 20, 2000. Claimant did not
attach a copy of this letter but claimed that Keysor stated, "...If you still
have not received your property from Auburn C.F., please complete the Claim Form
and an investigation will be conducted." Claimant allegedly had already filed
an inmate grievance seeking the location and information about his property on
or about October 26, 2000.
Claimant asserts that on or about October 30, 2000, he informed assigned
correction counselor Jorts of the property loss. He was allegedly told that the
draft processing officers were looking for the missing bag. Claimant alleges
that he requested copies of his inmate property form 2064 (I-64 form) on or
about November 15, 2000, but never received them. On or about November 21,
2000, Claimant was notified by Inmate Grievance Program Supervisor Boyea that
none of Claimant's property remained at Auburn and that he should file a claim
for his missing property.
Indeed, Claimant has not provided any supporting documentation other than his
own assertions and the specific references to the above-named DOCS employees,
alleging that his copies of the letters were confiscated by DOCS employees
(paragraph 15 of his Affidavit in Opposition). Defendant, however, has not
sufficiently disputed Claimant's factual contentions. Defendant attached as
Exhibit B to its Reply Affirmation a written "certification" by Carolyn Cushman,
the Inmate Record Coordinator (IRC) at Franklin, attesting that the documents
appended were true and exact copies of the originals (cf
., CPLR 2306
[a]). Included in the listing of documents is the gratuitous and parenthetical
addition, "no actual claim was filed." Yet, Defendant provides neither
documentation nor an affidavit that Claimant did not file an inmate claim form.
The IRC's certification of a negative
be elevated to the status of an affidavit. Since Claimant, under oath,
contravenes Defendant's assertions, I view the papers in a light favorable to
this pro se litigant. Claimant's factual averments regarding names, dates, and
actions are undisputed in this motion. Claimant did not file prematurely but had
exhausted his administrative remedies on or about November 21, 2000, when
DOCS personnel advised Claimant to file a claim
. I find that Claimant
timely filed his claim within the 120-day window that opened when Defendant gave
all indications, short of explicitly so stating, that Claimant had exhausted his
Defendant attempted to argue simultaneously that Claimant not only filed
prematurely but also late. Defendant contends that Claimant contravened Court
of Claims Act §10(3-a) when he served his claim on January 22, 2001,
purportedly more than 90 days after accrual. Defendant asserts that Claimant
had to serve a claim no later than January 21, 2001.
Assuming that the date of accrual was, as Defendant contends, October 23, 2000,
and that service had to be completed within 90 days, service still was not
untimely. January 21, 2001, was a Sunday. General Construction Law §20,
which relates to the computation of days, recognizes that Sunday must be
excluded from the reckoning if it is the last day of any measured period.
Service on Monday, the next day, was timely.
In its Reply Affirmation, the Defendant urges that the filing of the claim on
February 5, 2001 was beyond 90 days from accrual. Assuming, arguendo
that Claimant's cause of action was subject to the heretofore traditional 90 day
filing window (§10 [3-a]), dismissal would have been granted, but the
Legislature here, somewhat inexplicably,
expanded the filing period for bailments to 120 days (§10). Since
Claimant exhausted his administrative remedies on or about November 21, 2000,
filing of the claim on February 5, 2001 was timely.
However, circumstances surrounding the filing of this claim raise several
troubling issues for me. Court of Claims Act §11-a(1) reads:
The clerk of the court of claims shall require for the filing of a claim a fee
of fifty dollars. The fee shall be payable in advance, unless a motion,
affidavit, or certification pursuant to section eleven hundred one of the civil
practice law and rules is filed with the claim, in which case the provisions of
such section shall be applicable.
When he first submitted his claim for filing on or about January 22, 2001,
Claimant failed to provide the filing fee or an application pursuant to CPLR
1101 for a fee reduction. Following policies and procedures in effect at that
time, the Clerk's Office returned the claim and advised Claimant that it could
not be processed because neither the filing fee of $50 nor an application for a
fee reduction had accompanied it. Claimant re-filed his claim on February 5,
2001, with the appropriate fee reduction application. The filing fee was later
set at $20.
Section 11-a became effective on December 7, 1999. Because Chapter 412 was
passed and signed too late in the calendar year for inclusion in the 1999-2000
interim pocket parts for McKinney's Consolidated Laws of New York Annotated, the
Court's policy initially was that all claims received without a fee or fee
adjustment application, were dismissed. However, inmates were given a 30-day
grace period to apply for a fee reduction before final dismissal of the claim,
while non-inmates were deemed to have had their fee waiver application denied
and were granted a 120 day period to pay the full fee prior to dismissal. CPLR
1101 treats inmates and non-inmates as dissimilarly situated. A non-inmate may
seek to have the filing fee waived in full (1101[d]). Inmates will not receive
a reduction below $15 (1101[f]). Thus, in contrast to other claimants,
inmates were not entitled to a total waiver of the filing fee, but were given
the 30-day period to seek a fee reduction, and any reduced fee, rather than
being paid in full, became an encumbrance on the inmate's DOCS account.
In Gomez v Evangelista
(185 Misc 2d 816), the court addressed the
dichotomy of treatment between inmates and others in examining CPLR 1101 (f).
Justice Emily Jane Goodman held that "all plaintiffs or petitioners, free or
incarcerated, are precisely
similarly situated through the common
denominator of indigency and the impact of that indigency in commencing civil
litigation which may have nothing whatever to do with prison" (Gomez
at 819). Gomez
also found that the legislative history of
CPLR 1101(f) did not hint at intent to curtail frivolous prisoner suits within
the State. Rather, Justice Goodman found the purpose of CPLR 1101 is to protect
the rights of poor persons to bring civil actions and that 1101(f) was violative
of both the New York State and United States Constitutions, "[i]nsofar as [it]
mandates immediate or deferred payment without possibility of discretionary
waiver" for inmates (Gomez
, at 820)(cf
v the State of New York
, Read, P.J., June 22, 2001,
The policies and procedures of the Clerk's Office changed effective September
1, 2000, and the grace periods were no longer granted to the prospective filers.
Thus claims submitted for filing without a fee or fee adjustment application
were returned without being filed. The statute provides an added burden for
prospective claimants, allegedly injured in some fashion by the State of New
York, already faced with the short and strictly interpreted 90-day service and
filing requirements of the Court of Claims Act.
Inmates in particular, because of their insulated and collective housing, and
the "jailhouse legal pipeline" could have been lulled into thinking that they
would receive the 30 day grace period for the life of §11-a and CPLR
1101(f), both of which expire on December 31, 2002. It is conceivable that
Claimant could have been cognizant of the 30-day grace period when other inmates
had been excused from the effect of Chapter 412 during the first nine months of
the statutes' effective date. It could be argued that Claimant relied on other
inmates' experiences, when he tried to file his claim in January 2001, without a
fee or application for reduction, and was faced with the reality of Chapter 412
when the claim was returned. Of course, the opposite inference could be drawn
as the Clerk's Office had been returning claims for some five months prior to
Claimant's filing herein.
Since §11-a and CPLR 1101(f)(2) both have a so-called sunset provision,
and will be deemed repealed upon their expiration on December 31,
it might be argued that the initial
policies of the Clerk's Office would provide litigants with claims against the
State with a measure of protection from the harsh consequences of the rejection
of a claim for filing without the newly-imposed but required fee. Conversely,
it is black letter law that ignorance of the law is no excuse. Balancing these
competing factors is a difficult task.
Regardless, most of the discourse above is an exercise of judicial musing. The
Defendant's motion is denied in all respects.