New York State Court of Claims

New York State Court of Claims

KELLY v. THE STATE OF NEW YORK, #2001-010-020, Claim No. 103616, Motion No. M-62978


M-63079


Synopsis


Defendant's unopposed motions to dismiss is granted as claimant failed to timely serve his claim.

Case Information

UID:
2001-010-020
Claimant(s):
ANDRE KELLY
Claimant short name:
KELLY
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
103616
Motion number(s):
M-62978M-63079
Cross-motion number(s):

Judge:
Terry Jane Ruderman
Claimant's attorney:
ANDRE KELLYPro Se
Defendant's attorney:
HON. ELIOT SPITZER
Attorney General for the State of New YorkBy: James Shoemaker, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
March 22, 2001
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

The following papers numbered 1-2 were read and considered by the Court on defendant's unopposed motions to dismiss:
Notice of Motion, Attorney's Supporting Affirmation and Exhibit.........................1

Notice of Motion, Attorney's Supporting Affirmation and Exhibits........................2

Filed Papers: Claim

Claim No. 103616 seeks damages in the amount of $48.34 for defendant's alleged negligence in the loss of claimant's property during his incarceration at Sing Sing Correctional Facility. Paragraph 5 of the claim asserts February 11, 1999 as the date of accrual. However, it appears that claimant did not learn of the loss until February 4, 2000. On February 10, 2000, claimant filed an inmate claim within the facility (Claim, Ex. A), and on September 19, 2000, claimant rejected defendant's offer of settlement.

On December 15, 2000, the Attorney General's office received a copy of the claim by regular mail (Ex. A or Defendant's Motion Papers, M-63079). Defendant moved to dismiss on the ground of improper service (M-62978).[1] On January 29, 2001, claimant served another copy of his claim; this time by certified mail, return receipt requested (Ex. B to defendant's Motion Papers, M-63079). However, service was untimely under Court of Claims Act §10(9) which provides that an inmate's claim for loss of property must be served and filed within 120 days after the date on which the inmate exhausted his administrative remedies. Claimant failed to timely serve his claim.

Accordingly, defendant's unopposed motions to dismiss claim No. 103616 are hereby GRANTED (Court of Claims Act §10,11).


March 22, 2001
White Plains, New York

HON. TERRY JANE RUDERMAN
Judge of the Court of Claims




[1] Defendant has submitted an affidavit of service amending the date of service from March 17, 2001 to January 17, 2001.