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,
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
This claim, which accrued during the year 2000, is governed by Court of Claims
Act, § 10(9), which was added by legislative amendment in
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, , [3-a], [3-b], ). 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). 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]), while appeals of claims exceeding $500.00 are forwarded to the
central office for review (7 NYCRR 1700.3[b]). 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
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.
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).
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.