New York State Court of Claims

New York State Court of Claims

REED v. THE STATE OF NEW YORK, #2001-005-538, Claim No. 104511, Motion No. M-63895


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

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:
Terry ReedPro Se
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Timothy P. Mulvey, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
October 26, 2001

Official citation:

Appellate results:

See also (multicaptioned case)


On September 19, 2001, the following papers, numbered 1 to 5, were read on motion by Defendant for dismissal of the claim:

1, 2 Notice of Motion, Affirmation and Exhibits Annexed

3, 4 Opposing Notice of Motion (sic) and Affirmation (sic) and Exhibits Annexed
  1. Filed Paper: Claim
Upon the foregoing papers, this motion is granted.

The Defendant seeks dismissal of the claim herein on the grounds that the claim is premature in that the Claimant has allegedly failed to exhaust his administrative remedies as required by Court of Claims Act §10(9). The underlying claim sounds in bailment, and §10(9) does require the exhaustion of administrative remedies prior to the commencement of a claim for the loss of personal property.

The claim here alleges the loss of certain personal property at the Auburn Correctional Facility (Auburn), apparently accruing, in Claimant's phraseology, on or about ". . . 13/7 day of April/Sept, 2001."

The claim was served and filed on July 5, 2001, and the Defendant alleges that Claimant's file at Auburn does not contain any "facility claim" (read administrative remedy) (Exhibit B to the motion papers).

The Claimant opposes dismissal asserting that he filed a grievance on or about April 7, 2001 (Exhibit A to Claimant's opposing papers). That grievance, which complained about the behavior of a named correction officer, was denied by the Superintendent at Auburn on May 3, 2001. By appeal statement dated May 6, 2001, Claimant appealed therefrom.

Thereafter the instant claim was served and filed. In essence, I am called upon to decide whether the grievance and appeal therefrom satisfy the statutory requirement that administrative remedies be exhausted.

Court of Claims Act §10(9) requires that 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." The statute applies to the instant proceeding, and the Defendant avers under oath that no "facility claim" was filed.

Accordingly, as it appears that Claimant has failed to utilize the administrative process established at Auburn, the motion must be granted and the claim dismissed. I note here that the grievance appears to complain about the behavior of a correction officer, not the loss of property directly, and apparently a grievance is not the administrative remedy set forth in accordance with the requirements of §10(9).

Of course the denial of the grievance may foretell the results of any administrative remedy, and simply beg the question. Nonetheless, the dismissal of the claim herein is procedural, not substantive, and does not prejudice Claimant's opportunity, if he is so advised, to serve and file a claim after compliance with §10(9), to wit, within 120 days after he has exhausted such remedy.

October 26, 2001
Rochester, New York

Judge of the Court of Claims