New York State Court of Claims

New York State Court of Claims

GLOSTER v. THE STATE OF NEW YORK, #2002-011-550, Claim No. 103662, Motion No. M-64877


Defendant's motion to dismiss the claim on the basis that it was not timely served is granted.

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:
Jerry Gloster, Pro Se
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Eileen E. Bryant, Esq.,Assistant Attorney General
Third-party defendant's attorney:

Signature date:
June 5, 2002
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


Defendant has moved to dismiss the claim on the basis that it was not timely served. The

claim alleges a cause of action sounding in bailment and accrued, according to defendant, on August 7, 2000.

Under Court of Claims Act §10(9) a claim based upon an alleged loss of personal property by an inmate in the custody of the Department of Correctional Services, such as is alleged here, must be filed within one hundred and twenty days after the inmate has exhausted his or her administrative remedy. Unlike Court of Claims Act section 10(3) which governs claims for loss of personal property by all others, no provision is made in section 10(9) for serving a notice of intention and thereby extending the time within which the claim must be filed and served.

A copy of the verified claim submitted by defendant shows that it was received, served, on January 18, 2001. As the claim was received, served, more than 120 days after exhaustion of the administrative remedy, it is untimely. Accordingly, the motion is granted and the claim is dismissed.

In response to the motion to dismiss, claimant has requested, in accordance with Court of Claims Act section 10(8)(a), that the court treat the notice of intention he served as a claim. Under that provision of the statute, the court may grant such relief as is requested here if it is made upon motion before an action asserting a like claim against a citizen of the state would be barred under the provisions of article two of the civil practice law and rules, the notice of intention was timely served and contains facts sufficient to constitute a claim and the granting of the application would not prejudice the defendant.

Claimant has demonstrated that a notice of intention was served on defendant by certified mail return receipt requested on August 24, 2000. However, no provision is made in the statute for service of a notice of intention in actions of this nature (Court of Claims Act §10(9); cf. Court of Claims Act §10[3-b]). Consequently, Court of Claims Act §10(8) has no application here. Accordingly, the motion is denied without prejudice to an application pursuant to Court of Claims Act §10(6) for permission to late file a claim.

June 5, 2002
Saratoga Springs, New York

Judge of the Court of Claims

Papers Submitted:

1. Notice of Motion to Dismiss dated March 19, 2002
2. Affirmation in Support of Eileen E. Bryant, Esq. dated March 19, 2002 with exhibits annexed
3. Affidavit in Response of Jerry Gloster sworn to the 28th day of March, 2002 with attachments