Notice of Motion, Affirmation, with Exhibits 1,2
Filed Papers: Claim, Answer
In this claim, which was filed February 9, 2001, claimant seeks damages for
certain items of personal property which were allegedly lost when claimant was
transferred within Gouverneur Correctional Facility, and then subsequently
transferred to Attica Correctional Facility.
Court of Claims Act, § 11(a) requires that a claim must be served upon the
Attorney General either personally or by certified mail, return receipt
requested. The service and filing requirements of the Court of Claims Act are
jurisdictional prerequisites to the institution and maintenance of a claim
against the State, and therefore must be strictly construed (Finnerty v New
York State Thruway Authority, 75 NY2d 721; Byrne v State of New York,
104 AD2d 782, lv denied 64 NY2d 607).
In this claim, defendant asserts that the claim was served upon the Attorney
General by regular, first class mail, on February 5, 2001. A copy of the
envelope in which the claim was served has been attached to defendant's moving
papers (see Exhibit C) which shows postage of $.76 affixed thereto, which amount
is insufficient for the costs of certified mail, return receipt requested.
Furthermore, there is no indication on the envelope to establish that the claim
was served by certified mail, return receipt requested, as required by statute.
Accordingly, this Court finds that the claim which was served on February 5,
2001 was not served in accordance with the requirements of Court of Claims Act,
§ 11(a). This claim must therefore be dismissed based upon improper
service of the claim.
Defendant also seeks to dismiss this claim based upon claimant's non-compliance
with Court of Claims Act, § 10(9). This section provides that the "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." After the
inmate has exhausted such administrative remedy, the claim must then be served
and filed within 120 days.
Defendant asserts that claimant did not exhaust his administrative remedies
prior to serving and filing the instant claim. A copy of the "Inmate Claim
Form" has been included as an exhibit to the motion papers (Exhibit D) and there
is no indication set forth thereon that claimant proceeded with an appeal of the
initial determination denying his claim. Based upon this exhibit, as well as
the fact that claimant has not argued otherwise (and in fact, has not responded
to this motion), the Court finds that claimant did not exhaust his
administrative remedies prior to the service and filing of his claim, and
therefore did not comply with the requirements of Court of Claims Act, §
Accordingly, for the reasons set forth above, it is
ORDERED, that Motion No. M-63207 is hereby GRANTED; and it is further
ORDERED, that Claim No. 103806 is hereby DISMISSED.