New York State Court of Claims

New York State Court of Claims

LUMPKIN v. THE STATE OF NEW YORK, #2002-015-213, Claim No. 104809, Motion No. M-64118


Defendant's motion to dismiss claim for failure to commence administrative review process within 5 days of discovery of loss of denied. Motion to dismiss claim for failure to file within 120 days of exhaustion of administrative remedy likewise denied for lack of evidence that such remedy was exhausted.

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:
Kenneth Lumpkin, Pro Se
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: G. Lawrence Dillon, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
January 15, 2002
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


The defendant's motion to dismiss based upon the claimant's alleged failure to file the claim within 120 days of exhausting the Department of Correctional Services (DOCS) personal property claim administrative remedy as required by Court of Claims Act § 10 (9) is denied. The claim was received by the Attorney General on August 24, 2001 and filed with the Court on August 27, 2001. In it, the claimant seeks to recover the sum of $236.70 as the value of certain itemized personal property allegedly lost through the negligence of State employees in conjunction with his transfer from Marcy Correctional Facility to Mid-State Correctional Facility's Special Housing Unit (SHU) on January 24, 2001, which claimant alleges he discovered upon being released from the SHU on February 1, 2001.

The defendant's pre-answer motion to dismiss asserts that dismissal is appropriate in that the claimant failed to initiate the Department's administrative claim process within five days of discovering the loss and to file and serve the instant claim within one hundred and twenty days of exhausting his administrative remedy as required by section 10 (9) of the Court of Claims Act.

First, the claimant's failure to initiate the administrative remedy within five days of discovery of the loss does not support dismissal of the claim. Section 10 (9) prohibits the filing of a claim for the loss of personal property by an inmate unless he or she has exhausted the administrative personal property claim procedure and filed and served the claim within one hundred twenty days thereafter. Failure to comply with the time frames established by the Department for commencing the administrative process, which is specifically directed to be "interpreted with some flexibility" (7 NYCRR § 1700.4), is not addressed by section 10 (9) and the motion to dismiss the claim on that basis is denied.

The defendant's second argument, that the claimant's administrative remedy was exhausted on March 17, 2001 and the one hundred and twenty day window for filing a claim in this Court therefore expired on July 15, 2001, is likewise rejected. Attached to the defendant's motion papers is a copy of the claim investigation report prepared by DOCS in relation to the claimant's personal property loss. The report is dated March 17, 2001 and reflects that the claim was filed on March 8 and received on March 13, 2001. There is no evidentiary support for defendant's assertion that the claimant's appeal was denied on March 17, 2001 and, in fact, the assertion is belied by the defendant's submission which indicates only that the initial claim review was completed on that date (see Blank v Blank, 222 AD2d 851).

For the reasons stated herein, the defendant's motion to dismiss the claim is denied.

January 15, 2002
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
  1. Notice of motion dated September 28, 2001;
  2. Affirmation of G. Lawrence Dillon dated September 28, 2001 with exhibits;
  3. Letter dated October 1, 2001 from Kenneth Lumpkin.