New York State Court of Claims

New York State Court of Claims

OSORIO v. THE STATE OF NEW YORK, #2002-005-540, Claim No. 105790, Motion No. M-65270


Claimant's bailment claim is dismissed as premature as the facility claim and appeal had not been decided prior to the filing of the claim.

Case Information

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:
Teddy Osorio,Pro Se
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Timothy P. Mulvey, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
October 21, 2002

Official citation:

Appellate results:

See also (multicaptioned case)


On July 17, 2002, the following papers, numbered 1 to 4, were read on motion by Defendant for an order dismissing the claim:

Papers Numbered

1, 2 Notice of Motion, Affirmation and Exhibits Annexed
  1. Claimant's Letter dated May 30, 2002, with Exhibit Appended
  2. Filed Paper: 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 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 at the Five Points Correctional Facility (Five Points), apparently accruing on or about February 14, 2002.

The claim was allegedly served on April 17, 2002 (it was filed on March 21, 2002). It appears without dispute that Claimant did file a facility claim on or about February 20, 2002, for the sum of $2,432.00. Defendant alleges that on or about April 16, 2002, to wit, after the claim was filed, and one day prior to its service, the institutional claim was partially approved, in the sum of $62.50 (Exhibit B to the motion papers). It appears that on or about April 26, 2002, Claimant's administrative appeal was forwarded to the central office of the Department of Correctional Services (DOCS ). As of the date of the service of the instant motion papers, May 23, 2002, the appeal was still pending. However, by letter dated May 30, 2002, Claimant supplied the Court with a copy of what appears to be the result of the appeal to DOCS, wherein Claimant's appeal was approved, and the amount was increased to $79.50. I am aware that Claimant has not directly provided a copy of said result to the Defendant, as he sought the Court's permission to add the same as an exhibit to his claim prior to serving it upon the Defendant. It would appear that Claimant remains dissatisfied with the settlement amount offered by DOCS in response to his facility claim and appeal as he did not withdraw his claim.

The Defendant seeks dismissal of the instant claim on the ground that Claimant has failed to exhaust his administrative remedies as required by Court of Claims Act §10(9) which 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.

I find that the instant claim was served and filed prematurely prior to the exhaustion of the available administrative remedies. I note that Claimant's only communication with the Court since being served with the motion papers was the attempted inclusion of the results of the administrative process, but nothing was presented to dispute or object to the arguments put forth by the Defendant.

Thus Claimant has defaulted on this motion, and has failed to oppose the relief sought. 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 facility claim or appeal, and as such, Claimant has failed to exhaust his administrative remedies in contravention of Court of Claims Act §10(9).

Accordingly, 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 new claim after compliance with §10(9), to wit, within 120 days. The statute calls for the 120 day period to be measured from the exhaustion of administrative remedies, but since this issue was being litigated before me, fairness requires that Claimant be given the same 120 day period, to be measured from the date of service of a file-stamped copy of this order, to serve and file a new claim, which may well require another filing fee.

October 21, 2002
Rochester, New York

Judge of the Court of Claims