New York State Court of Claims

New York State Court of Claims

CEPEDA v. THE STATE OF NEW YORK, #2001-009-049, Claim No. 104717, Motion No. M-64015


Defendant's motion to dismiss this claim for loss of personal property was dismissed based upon a failure of claimant to comply with appropriate regulations.

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:
Defendant's attorney:
Attorney General
BY: Joel L. Marmelstein, Esq.,
Assistant Attorney Generalof Counsel.
Third-party defendant's attorney:

Signature date:
October 22, 2001

Official citation:

Appellate results:

See also (multicaptioned case)


Defendant has brought this pre-answer motion seeking an order dismissing the claim.

The following papers were considered by the Court in connection with this motion:
Notice of Motion, Affirmation in Support, with Exhibits 1,2

Letter dated September 16, 2001 from Claimant to David B. Klingaman, Chief Clerk, with Attachments 3

In this claim, claimant seeks damages in the amount of $421.50 arising from the loss of his personal property while he was under the care and custody of the State Department of Correctional Services. Claimant alleges that on or about April 30, 2000, defendant lost a certain number of bags of his personal property during his transfer from Gouverneur Correctional Facility to Wende Correctional Facility. Claimant further alleges that he was subsequently transferred to Clinton Correctional Facility from Wende Correctional Facility on or about May 10, 2000, and his bags remained missing. After efforts to locate his property proved unsuccessful, claimant submitted an "Inmate Claim Form" (see Exhibit B to Items 1,2) which was filed at Clinton Correctional Facility on September 6, 2000. This administrative claim was denied on January 24, 2001. Claimant appealed the decision to the superintendent of the facility, and his appeal was denied by the superintendent on February 27, 2001 (see Attachment to Exhibit A). On March 3, 2001, claimant attempted to appeal the superintendent's decision to the central office by letter addressed to Charles M. Devane, Deputy Commissioner for Administrative Services (see Exhibit C). Claimant has acknowledged that on April 13, 2001, he received correspondence from Frank R. Headley, Deputy Commissioner of Program Services, that no further administrative review was available, and that claimant's only recourse was to pursue the matter in the Court of Claims (see Exhibit D).

This claim, which is undated,[1] was filed with the Clerk of the Court of Claims on August 13, 2001, and was served on the Attorney General, by certified mail, return receipt requested, on August 15, 2001. The Attorney General also acknowledges that a notice of intention to file claim was served on August 4, 2000, by certified mail, return receipt requested.

Defendant now seeks dismissal of this claim, alleging that the claim was untimely served.

This claim, which accrued during the year 2000, is governed by Court of Claims Act, § 10(9), which was added by legislative amendment in 1999.[2] This statute provides that any claim alleging the loss of personal property by an inmate is not permitted to be filed "unless and until the inmate has exhausted the personal property claims administrative remedy". Furthermore, the statute requires that any such claim " must be filed and served within 120 days after the date on which the inmate has exhausted such remedy."

The Court will first consider the legal effect, if any, to be given to claimant's notice of intention, which was served on the Attorney General on August 4, 2000. In certain types of claims brought before this Court, a claimant may obtain an extended period of time to serve and file a claim by first serving a notice of intention within the applicable time frame (see, e.g., Court of Claims

Act, § 10[2], [3], [3-a], [3-b], [4]). However, a claimant is not authorized to obtain such an extension of time in all claims brought before this Court (see, e.g., Court of Claims Act, § 10[1]). Section 10(9), which sets forth the time period for bringing a claim alleging the loss of personal property by an inmate, contains no provision permitting the use of a notice of intention to extend the time within which to bring such a claim. Without express legislative authority, this Court cannot find that a notice of intention is authorized in a claim governed by § 10(9). Since the use of a notice of intention to extend the time in which to serve and file a claim is not expressly contained in § 10(9), this Court must find that the notice of intention, served by claimant on the Attorney General on August 4, 2000, is of no legal consequence. Accordingly, as provided by § 10(9), in order to be timely this claim had to be served and filed within 120 days after claimant had exhausted his administrative remedies.

The procedures regulating the claims of inmates for lost personal property are contained in Title 7 of New York Codes, Rules and Regulations, Part 1700. Relevant to this claim, provisions provide that appeals of claims up to $500.00 are made to, reviewed and decided by the facility superintendent (7 NYCRR 1700.3[b][1]), while appeals of claims exceeding $500.00 are forwarded to the central office for review (7 NYCRR 1700.3[b][2]). Furthermore, once the appropriate appeal is taken and decided, no further administrative review is available, and the only remaining option is an action in the Court of Claims (7 NYCRR 1700.3[b][4]).

In this claim, the claim filed by claimant for the loss of his personal property was admittedly less than $500.00, and therefore pursuant to 7 NYCRR 1700.3(b)(1), his appeal process was exhausted once the facility superintendent had denied his appeal. At the latest, claimant received notice of this denial by March 3, 2001, the date of his letter to Charles Devane at the central office (see Exhibit C), in which he incorrectly sought a further appeal of the superintendent's decision. Accordingly, pursuant to Court of Claims Act, § 10(9), claimant had 120 days from this date to serve and file his claim. According to the calculations made by this Court, this claim had to be served and filed no later than Monday, July 2, 2001.[3] Since the claim in this instance was not filed until August 13, 2001, and was not served until August 15, 2001, both the service and filing occurred beyond the time frames set forth in § 10(9), and must therefore be found untimely.

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 as such 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). This claim, therefore, must be dismissed based upon the untimely service and filing of the claim.

In his response to this motion, claimant has requested this Court to grant him some latitude in complying with the statutory and regulatory directives, since he is a pro se litigant. While this Court is willing to permit some liberty in the presentation of pro se claims, such latitude cannot be extended to excuse compliance with those very statutes which expressly confer jurisdiction on this Court to entertain such claims.

Claimant further contends that the 120 day period for filing and serving his claim should be measured not from the denial of his appeal by the facility superintendent, but rather from April 13, 2001, the date he received the letter from Frank R. Headley denying his attempted further appeal to the central office (see Exhibit D).[4] The regulations set forth in § 1700.3 of Title 7 of the Codes, Rules and Regulations, however, explicitly establish a separate and distinct appeal process, depending on whether a claim seeks damages up to $500.00, or exceeds that amount. Additionally, the interdepartmental memorandum from Superintendent Senkowski (see Attachment to Exhibit A) specifically advised claimant that he had the right to file a claim with the Court of Claims, and made no suggestion or directive that claimant should attempt to pursue any administrative remedy to the central office, or that any further administrative appeal was available. The remedies available to claimant, therefore, were accurately portrayed. Accordingly, since the Court does not have the authority to waive jurisdictional mandates, the provisions of Court of Claims Act, § 10(9) and Title 7 of the Codes, Rules and Regulations, Part 1700, must be strictly construed. This claim must therefore be dismissed.

Based on the foregoing, it is

ORDERED, that Motion No. M-64015 is hereby GRANTED; and it is further

ORDERED, that Claim No. 104717 is hereby DISMISSED.

October 22, 2001
Syracuse, New York

Judge of the Court of Claims

[1] Other documents submitted for filing with the claim, such as an affidavit of service, an Authorization, and an affidavit in support of application pursuant to CPLR 1101(f), all are signed and notarized as of August 6, 2001.
[2] See Chapter 412, Part D, § 2, of the Laws of 1999.
[3] The 120th day after March 3, 2001 was actually Sunday, July 1, 2001. Claimant was therefore permitted to serve and file his claim no later than the next business day (see General Construction Law, § 25-a[1]).
[4] Claimant acknowledged in his moving papers that he received the correspondence from Frank R. Headley on April 13, 2001. A computation of the 120 day period set forth in § 10(9) required claimant to serve and file his claim by August 11, 2001, which was a Saturday. Pursuant to General Construction Law, § 25-a(1), claimant therefore had until Monday, August 13, 2001 to serve and file his claim. Although the claim was filed on that date, service was not completed upon the Attorney General until August 15, 2001, when the claim was received by the Attorney General.