New York State Court of Claims

New York State Court of Claims

SUTTER v. STATE OF NEW YORK, #2002-005-507, Claim No. 105399, Motion No. M-64590


Synopsis


Defendant's motion for dismissal of the claim for the failure to exhaust administrative remedies (§10[9]) is granted.

Case Information

UID:
2002-005-507
Claimant(s):
HOWARD SUTTER #90T4629
Claimant short name:
SUTTER
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
105399
Motion number(s):
M-64590
Cross-motion number(s):

Judge:
DONALD J. CORBETT, JR.
Claimant's attorney:
Howard Sutter,Pro Se
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Heather R. Rubinstein, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
February 28, 2002
City:
Rochester
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

On February 13, 2002, the following papers, numbered 1 to 3, were read on motion by Defendant for dismissal of the claim:

1, 2 Notice of Motion, Affirmation and Exhibits Annexed
  1. Opposing papers
  1. Filed Papers: Claim
Upon the foregoing papers, this motion is granted.

The Defendant seeks dismissal of the claim herein on the grounds that the claim is premature in that the Claimant has allegedly failed to exhaust his administrative remedies as required by Court of Claims Act §10(9). The underlying claim sounds in bailment, and §10(9) does require the exhaustion of administrative remedies prior to the commencement of a claim for the loss of personal property.

The claim here alleges the loss of certain personal property during a transfer from the Auburn Correctional Facility (Auburn) to Cayuga Correctional Facility (Cayuga), apparently accruing, in Claimant's phraseology, on or about September 7, 2001. The claim was served upon the Defendant on December 7, 2001.

The Defendant affirms under oath that Claimant filed an internal claim with Cayuga (see Exhibit B), which had not yet been determined (although Exhibit B suggests that such internal claim would have been determined in the interim prior to this decision).

Court of Claims Act §10(9) requires that any claim of an inmate seeking to recover 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." The statute applies to the instant proceeding, and the Defendant avers under oath that the "facility claim" was not decided prior to the service and filing of the claim.

Claimant has defaulted on this motion, and has failed to oppose the relief sought or otherwise communicate with the Court. Thus, it appears that the Department of Correctional Services, at the time of the service and filing of this claim, had not yet made a determination of the internal claim, and as such, Claimant has failed to exhaust his administrative remedies in contravention of Court of Claims Act §10(9)

Accordingly, as it appears that Claimant has failed to exhaust the administrative process, the motion must be granted and the claim dismissed. Regardless, the dismissal of the claim herein is procedural, not substantive, and does not prejudice Claimant's opportunity, if he is so advised, to serve and file a claim after compliance with §10(9), to wit, within 120 days after he has exhausted such remedy.


February 28, 2002
Rochester, New York

HON. DONALD J. CORBETT, JR.
Judge of the Court of Claims