New York State Court of Claims

New York State Court of Claims

MCALLISTER v. THE STATE OF NEW YORK, #2001-005-527, Claim No. 103773, Motion No. M-63158


Defendant's motion for dismissal of the claim, inter alia, pursuant to Court of Claims Act §10(9) for the failure to exhaust administrative remedies, is denied.

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:
Charles McAllister
Pro Se
Defendant's attorney:
Eliot Spitzer, Attorney General
By: Timothy P. Mulvey, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
September 10, 2001

Official citation:

Appellate results:

See also (multicaptioned case)


On March 28, 2001, the following papers, numbered 1 to 7, were read on motion by Defendant for dismissal of the claim:

1, 2 Notice of Motion, Affirmation and Exhibits Annexed
  1. Opposing Affidavit and Exhibits Annexed
  2. Reply Affirmation and Exhibits Annexed
  3. Claimant's Affidavit in Response to Reply
6, 7 Filed Papers: Claim; Order setting filing fee, dated February 27, 2001

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 supportable.

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 (§1700.3[b]).[1]

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[2] cannot 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 administrative remedies.

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,[3] expanded the filing period for bailments to 120 days (§10[9]). 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][2]). 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, supra, 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, supra, at 820)(cf., Eldridge v the State of New York, Read, P.J., June 22, 2001, #2001-001-033).[4]

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, 2002,[5] 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.

September 10, 2001
Rochester, New York

Judge of the Court of Claims

[1] Query: Given the permissive "may", if one does not appeal to the facility superintendent, have administrative remedies been exhausted?
[2] How can one attest to the accuracy of a copy where the original document purportedly does not exist?
[3] The Bill Jacket for Chapter 412, Laws of 1999 contains only the bill itself and "no memoranda" (see Page 4).
[4] Decisions of the Court of Claims are available in a searchable database on the internet, free of charge. Access may be gained through the Court of Claims website at
[5] While future legislative action is never assured, viewing this fee as temporary would be akin to trying to put the genie back in the bottle.