New York State Court of Claims

New York State Court of Claims

GEORGE v. STATE OF NEW YORK, #2001-018-098, Claim No. 103748, Motion Nos. M-63206, M-63879


Synopsis



Case Information

UID:
2001-018-098
Claimant(s):
NATKIN GEORGE
Claimant short name:
GEORGE
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
103748
Motion number(s):
M-63206, M-63879
Cross-motion number(s):

Judge:
DIANE L. FITZPATRICK
Claimant's attorney:
NATKIN GEORGEPro Se
Defendant's attorney:
ELIOT SPITZER
Attorney General of the State of New York
By: JOEL L. MARMELSTEIN, ESQUIREAssistant Attorney General
Third-party defendant's attorney:

Signature date:
March 19, 2002
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision
Defendant brings a motion to dismiss the claim, motion number M-63206. Claimant has brought a separate motion for summary judgment, motion number M-63879. The Court will address the motion to dismiss first as it was filed first.

MOTION NO. M-63206
The claim seeks damages in the amount of $760 for the loss of personal property while claimant was incarcerated and in the Special Housing Unit at Riverview Correctional Facility on May 26, 2000, asserting that the State failed to secure the belongings in claimant's locker when they removed him to the Special Housing Unit. Claimant itemized the property that he allegedly lost and filed a claim for the lost items with the facility, which was denied on June 21, 2000. Claimant appealed the decision, which was denied on August 24, 2000. A copy of the appeal determination was received by the Deputy Superintendent at Riverview Correctional Facility on August 28, 2000.

Defendant brings this motion seeking an order dismissing the claim on the ground that the claim was not served timely in accordance with Court of Claims Act §10(9), alleging that claimant had 120 days after all administrative remedies were exhausted to file and serve his claim for loss of personal property. Claimant had notice of the denial of his administrative appeal by August 31, 2000, but did not serve his claim on the attorney general until January 26, 2001; therefore, the claim is late and must be dismissed. Claimant did serve a notice of intention upon the attorney general on September 8, 2000; however, defendant argues that Court of Claims Act §10(9) authorizes only the filing and service of a claim, not a notice of intention; therefore, the notice of intention that claimant served upon the attorney general is a nullity and did not extend his time to file a claim.

Court of Claims Act §10(9), which became effective on December 7, 1999 (L. 1999, c. 412, pt. D, §2), provides:
A 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. Such claim must be filed and served within one hundred twenty days after the date on which the inmate has exhausted such remedy.
It is a fundamental rule, that a court in interpreting a statute must effectuate the intent of the legislature. (Patrolmen's Benevolent Assn. v City of New York, 41 NY2d 205, 208) Where the words and meaning are plain, clear and unambiguous, a court should give effect to the plain meaning of the words used. (Bender v Jamaica Hosp. 40 NY2d 560, 561-562; Konviser v State of New York, 180 Misc 2d 174) Where the statute describes the particular act, thing or person to which it shall apply an irrefutable inference must be drawn that what is omitted or not included was intended to be omitted or excluded. (McKinneys Cons. Laws of NY, Book 1, Statutes §240; Patrolmen's Benevolent Assn. v City of New York, supra; Kaplan v State of New York, 152 AD2d 417, 419)

Although Court of Claims Act §10[3] authorizes the service of a notice of intention within 90 days of the date the claim accrued, thereby extending the time to file and serve a claim, in this case the statute is quite clear, it does not authorize the service of a notice of intention to extend one's time for filing a claim for loss of personal property. It is the claim which must be filed within 120 days after the administrative remedy is exhausted. The fact that the legislature in amending the statute omitted the right to serve a notice of intention to extend the time for filing a loss of personal property claim must be viewed as an intentional omission.

It appears that by August 31, 2000, claimant had received notice of the denial of his administrative appeal which exhausted his administrative remedies. Claimant then had until December 29, 2000 to file and serve his claim for loss of personal property. The attorney general's office was not served until January 26, 2001, and the claim was not filed with the Clerk of the Court until January 29, 2001, well beyond the 120 day time frame. The requirements for commencing an action in the Court of Claims are jurisdictional and must be strictly construed. (Lichtenstein v State of New York, 252 AD2d 921, aff'd 93 NY2d 911)

Based upon the foregoing, defendant's motion is GRANTED and the claim must be DISMISSED.
MOTION NO. M-63879
Based upon the foregoing, claimant's motion seeking summary judgment must be DENIED as moot. The claim has been dismissed.


March 19, 2002
Syracuse, New York

HON. DIANE L. FITZPATRICK
Judge of the Court of Claims

Motion No. M-63206
Notice of Motion..................................................................................1

Affirmation of Joel L. Marmelstein, Assistant Attorney General

in support with exhibits attached thereto..............................................2


No opposing documents were received from claimant. Defendant has submitted an affidavit of service indicating that claimant was served with the motion by mail on March 9, 2001.

Motion No. M-63879

Notice of Motion....................................................................................3

Affidavit of Natkin George in support with exhibits attached

thereto..............................................................................................4


Affirmation of Joel L. Marmelstein, Assistant Attorney General

in opposition.....................................................................................5


Reply affidavit of Natkin George........................................................6