New York State Court of Claims

New York State Court of Claims

CLARKE v. THE STATE OF NEW YORK, #2001-019-576, Claim No. NONE, Motion No. M-64061


Claimant's motion for permission to file a late claim for loss of personal property denied due to failure to exhaust administrative remedies pursuant to CCA 10 (9).

Case Information

ALEX CLARKE, #97-A-0039
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:
BY: James E. Shoemaker, Assistant Attorney General, of counsel
Third-party defendant's attorney:

Signature date:
November 19, 2001

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant, an inmate appearing pro se, moves for permission to file a late claim pursuant to Court of Claims Act (hereinafter "CCA") 10 (6). The State of New York (hereinafter "State")

opposes the motion.

The Court has considered the following papers in connection with this motion:
  1. Notice of Motion No. M-64061, undated, and filed September 14, 2001.
  2. Affidavit of Alex Clarke, in support of motion, sworn to September 10, 2001.
  3. Affirmation of James E. Shoemaker, AAG, in opposition to motion, dated October 4, 2001, and filed October 9, 2001, with attached exhibits.
Claimant's papers provided limited information about the underlying claim. The State, however, has submitted to the Court copies of the relevant Notice of Intention, Claim, and Inmate Claim Form with its opposing papers. The Claim alleges that the State was negligent in losing Claimant's personal property during his transfer from Elmira Correctional Facility to Cayuga Correctional Facility on February 15, 2001. (Claimant's Affidavit in Support, ¶ ¶ 2 [a] & [c]). The State asserts that it received the Notice of Intention and Claim in the same envelope by way of regular mail on June 22, 2001. Claimant concedes that he failed to serve the claim by one of the prescribed methods under CCA 11. (Affidavit of Alex Clarke, ¶ 2b). Moreover, this Claim was never filed in the Office of the Clerk. Recognizing these deficiencies, Claimant now seeks permission to file a late claim.

The State raises two points in opposition which it contends justify denial of this motion, namely (1) Claimant's failure to comply with CCA 10 (9) and (2) Claimant's failure to submit a proposed claim.

An analysis of the statutory factors set forth in CCA 10 (6) is not warranted inasmuch as Claimant has failed to establish compliance with 10 (9).[1] CCA 10 (9) mandates that:
[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.

The Department of Correctional Services (hereinafter "DOCS") has established a two-tier system for handling personal property claims consisting of an initial review and an appeal. (7 NYCRR 1700.3). Here, Claimant's moving papers do not address, let alone establish, that he pursued an initial review and appeal available to him through DOCS. (7 NYCRR 1700.3 [b]). Rather, the State's opposing papers, notably the Inmate Claim Form, support the conclusion that Claimant started to pursue his administrative remedies but did not complete the initial review let alone the subsequent appeal. (Exhibit D to Affirmation in Opposition of James E. Shoemaker, AAG). In sum, Claimant has failed to demonstrate that he exhausted the available administrative remedies pursuant to CCA 10 (9) and, as such, may not yet pursue his claim in this venue absent such a showing.

Parenthetically, the Court notes that although the State is correct that Claimant has failed to submit a proposed claim with his motion papers in violation of CCA 10 (6) such failure in and of itself is not dispositive of the motion. More specifically, CCA 10 (6) requires, among other things, that "[t]he claim proposed to be filed, containing all of the information set forth in section eleven of this act, shall accompany such application." Nevertheless, the Court finds no prejudice to the State in treating the pre-existing claim, though untimely and unfiled, as the proposed claim. (Syndicate Bldg. Corp. v City Univ. of N. Y., 151 Misc 2d 492, 495 n 2).

Accordingly, for the reasons stated above, it is ORDERED that Claimant's motion for permission to file a late claim, Motion No. M-64061, is DENIED.

November 19, 2001
Binghamton, New York

Judge of the Court of Claims

[1]CCA 10 (9) became effective on December 7, 1999 (L 1999, c.412) and is thus applicable to this case.