New York State Court of Claims

New York State Court of Claims

SIMPSON v. THE STATE OF NEW YORK, #2002-015-234, Claim No. 105244, Motion No. M-64453


Inmate claimant seeking to recover for loss of personal property filed and served six days after expiration of statutory 120 day period for commencing claim (Court of Claims Act § 10 (9) dismissed. Absent statutory authorization filing of notice of intention in inmate claim for personal property loss does not extend 120 day commencement period.

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:
Shawn Simpson, Pro Se
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Joel L. Marmelstein, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
March 20, 2002
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


Defendant's pre-answer motion to dismiss this inmate personal property claim for lack of jurisdiction based upon the claimant's failure to file and serve the claim within 120 days of the exhaustion of claimant's administrative remedy pursuant to Court of Claims Act § 10 (9) is granted. The claim seeks damages in the amount of $1,778.26 for the loss of certain of claimant's personal property while he was under the care and custody of the State Department of Correctional Services. Claimant alleges that on or about December 19, 2000 the defendant lost bags containing his personal property while he was being transferred from Marcy Correctional Facility to Woodbourne Correctional Facility. Claimant initially packed nine bags of personal property but was advised that pursuant to departmental regulations only four bags could be shipped with the inmate. Claimant exercised his option to ship the remaining property via the U.S. Postal Service at his expense which in this case amounted to $46.00. He alleges that the additional five property bags were not inventoried and that three of them were lost, stolen or damaged. This claim seeks to recover the alleged value of the personal property purportedly contained in the three missing bags.

Following his arrival at Woodbourne claimant inquired concerning the whereabouts of the missing property and was advised that it had been mailed from Marcy on January 10, 2001. Claimant's subsequent inquiry to the U.S. Postal Service revealed that the property had been returned to Marcy by the Postal Service because the packaging had been determined to be unacceptable (see Postmaster's undated letter attached to claim as Exhibit B). Claimant alleges receipt of this letter on March 16, 2001 and further alleges the filing of an Inmate Claim Form (per DOCS Directive 2733) on March 20, 2001. His administrative claim (# 140-0063-00) was denied on March 23, 2001 by Woodbourne's Deputy Superintendent of Administration T. J. Miller on the ground that the missing property had been re-packed and re-mailed from Marcy on January 20, 2001. Although claimant did not appeal the March 23, 2001 decision to the Acting Superintendent of the facility (S. Lowry), he received a decision disapproving the claim from the Acting Superintendent on April 11, 2001 (Exhibit C). Claimant alleges that submission of the claim to Acting Superintendent Lowry was a denial of due process and violated DOCS Directive 2733 § II - A & B. He asserts that subdivision B of that section provides that an appeal involving a claim in excess of $500.00 shall be forwarded to the central office for review by the Director of Budget and Finance or his designee (see, 7 NYCRR § 1700.3(b) (2)) and should not have been submitted to Acting Superintendent Lowry.[1] Although the further routing of this inmate claim is not clearly delineated claimant was advised by letter of Senior Budget Analyst Carol T. Caban dated April 16, 2001 that the appeal of his claim was being processed and he would be notified of a decision. On July 13, 2001 Jeanne S. Nickels an Associate Budget Analyst in the Office of Inmate Accounts, advised claimant that his Claim No. 140-0063-00 had been approved. In relevant part the letter (see Exhibit D) provided:
We have approved your claim for $101.81. The claim has been forwarded to staff at Woodbourne and you will be contacted to complete the paperwork relating to the claim.

If you are unwilling to accept this offer in full settlement of the claim, your remaining option is pursuing the claim in the Court of Claims.
On August 6, 2001 claimant received a memorandum (see Exhibit D) from Woodbourne's Deputy Superintendent T.J. Miller which stated in part, "[a] thorough investigation has been completed in regard to your appeal of an inmate claim. We are offering you the amount of $101.81 in FULL SETTLEMENT of your claim." It further provided the recipient with optional language whereby he could accept or reject the settlement offer. Claimant elected to reject the offer, signed the DO NOT accept portion of the memo and returned it on August 7, 2001.

Subsequent to the Superintendent's disapproval of the inmate claim on April 11, 2001 and to being informed of the further processing of his appeal by the Division of Budget and Finance on April 16, 2001, but prior to the July 13, 2001 letter of Budget Analyst Nickels, claimant served a notice of intention to file a claim by certified mail, return receipt requested, upon the Attorney General which was received on May 29, 2001.

On November 21, 2001 the instant claim was filed with the Clerk of the Court and served upon the Attorney General by certified mail, return receipt requested.

Defendant now seeks dismissal of the claim alleging that it was untimely served under the 120 day requirement set forth in Court of Claims Act § 10 (9).

This claim, which accrued during the year 2001, is governed by Court of Claims Act § 10 (9)[2] which provides that any claim alleging the loss of personal property by an inmate may not be filed "unless and until the inmate has exhausted the personal property claims administrative remedy". Furthermore, the statute requires that any such claim " must be filed and served within 120 days after the date on which the inmate has exhausted such remedy."

The Court will first consider the legal effect, if any, to be given to claimant's notice of intention, which was served on the Attorney General on May 29, 2001. In certain types of claims brought before this Court, a claimant may obtain an extension of the period provided for service and filing of a claim by first serving upon the Attorney General a notice of intention to file a claim. However, a claimant is not authorized to obtain such an extension of time in all claims brought before this Court (see, e.g., Court of Claims Act, § 10 [1]). Section 10 (9) of the Act, at issue on the instant motion, sets forth the time period for bringing a claim alleging the loss of personal property by an inmate and contains no provision permitting the use of a notice of intention to extend the time within which to serve and file a claim. Without express legislative authority, this Court cannot find that the use of a notice of intention is authorized in a claim governed by section 10 (9). Since the use of a notice of intention to extend the time in which to serve and file a claim is not expressly authorized in section 10 (9) the notice of intention served by claimant on the Attorney General on May 29, 2001 is of no legal consequence. Accordingly, in order to be timely, the claim was required to be served and filed in a manner authorized by Court of Claims Act § 11 (a) (i) within 120 days after claimant exhausted his administrative remedy.

The procedures regulating personal property claims of inmates, including appeals, are set forth in Title 7 of NYCRR Part 1700. After initial review of the claim by the deputy superintendent for administration or functional equivalent, appeals of claims exceeding $500.00 are to be forwarded to the central office for review (7 NYCRR 1700.3 [b] [2]). Furthermore, once the appropriate appeal is taken and decided, no further administrative review is available, and the only remaining option is for the inmate to pursue a claim in the Court of Claims (7 NYCRR 1700.3 [b] [4]).

In his opposition to this motion, claimant argues that the letter of Jeanne S. Nickels dated July 13, 2001 indicated that the appeals process was not yet complete and dissuaded him from timely filing a claim. He asserts that based on such conduct the State should be estopped from seeking to enforce the 120 day time limitation citing Stroud v State of New York, 184 Misc 2d 876. Claimant further contends that the 120 day period for filing and serving his claim should be measured not from his July 18, 2001 receipt of the Nickel's letter but rather from August 6, 2001, the date he received the memorandum with settlement acceptance options from Deputy Superintendent Miller (see Exhibit D).

In this claim for the loss of personal property alleged to have a value of $1,778.26 and therefore subject to 7 NYCRR 1700.3 (b) (2), claimant's appeal or administrative review process was exhausted once the Division of Budget and Finance reviewed the initial claim decision and rendered a written decision. Here, claimant was notified on July 18, 2001 by letter of Jeanne S. Nickels that his claim was approved in the amount of $101.81 and that if he was "unwilling to accept this offer in full settlement of the claim, your remaining option is pursuing the claim in the Court of Claims." The clear import of the language used was to convey to the claimant that no further administrative processes were available and that the personal property claims administrative remedy had been exhausted. At that point, claimant could either accept the amount offered or pursue a remedy in this Court. Accordingly, pursuant to Court of Claims Act § 10 (9) claimant had 120 days from July 18, 2001 to serve and file his claim. Since the claim in this instance was not served and filed until November 21, 2001, 6 days beyond the 120 day limit set forth in § 10 (9), the claim is untimely. It is, of course, well-established that the service and filing requirements of the Court of Claims Act are jurisdictional prerequisites to the institution and maintenance of a claim against the State, and as such must be strictly construed (Finnerty v New York State Thruway Authority, 75 NY2d 721; Byrne v State of New York, 104 AD2d 782, lv denied 64 NY2d 607). Claimant's failure to comply with the time for service and filing of a claim provided in Court of Claims Act § 10 (9) requires that the defendant's motion to dismiss the claim be granted and the claim is hereby dismissed.

March 20, 2002
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
  1. Notice of motion dated December 11, 2001;
  2. Affirmation of Joel L. Marmelstein dated December 11, 2001 with exhibits;
  3. Affidavit of Shawn Simpson sworn to January 7, 2002.

[1]It does not appear that any harm resulted from the apparent misdirection of claimant's appeal to the Superintendent rather than directly to the central office and no due process violation resulted therefrom.
[2]L.1999, ch 412.