New York State Court of Claims

New York State Court of Claims

ARCE v. THE STATE OF NEW YORK, #2002-015-265, Claim No. 105449, Motion No. M-64738


Portion of claim seeking to recover damages for personal injury resulting from DOCS confiscation and retention of knee and back brace survived motion to dismiss while portion of claim premised on loss of personal property dismissed for failure to comply with Court of Claims Act § 10 (9).

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

Signature date:
June 26, 2002
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


The defendant's pre-answer motion to dismiss the instant claim for lack of jurisdiction is granted in part and denied in part. The claim seeks to recover $92,000.00 in damages for the loss of 92 family photographs which disappeared between October 23, 2001 and November 29, 2001 following the claimant's transfer from Mid-State Correctional Facility to Wende Correctional Facility. It further seeks to recover $25,000.00 in damages for personal injuries allegedly sustained during a six day period commencing October 24, 2001 stemming from the confiscation of claimant's knee and back braces without medical authorization by Correction Officer Chandler at Mid-State Correctional Facility and the defendant's failure to restore them to claimant's possession.

This pre-answer motion requests dismissal on the ground that the claim was improperly filed prior to the exhaustion of the inmate claimant's administrative remedy in contravention of Court of Claims Act § 10 (9) and on the ground that the claim fails to state a theory of liability upon which the State could be held responsible.

Claimant submitted what appears to be a notice of motion and a document identified as an "affirmation pursuant to 28 USC 1746, and CPLR 2106" with an attached exhibit. The document is not sworn to before a person authorized to administer an oath (see CPLR § 2309 [a]) and is not in affidavit form. Nor has claimant identified himself as a member of one of the professions authorized by Rule 2106 of the CPLR to submit an affirmation in lieu of an affidavit. Claimant's reliance upon 28 USC § 1746 is misplaced since the federal rules of procedure are not applicable to actions in this Court. Moreover, there is no counterpart to 28 USC § 1746 in New York Practice. Accordingly, the claimant's submission is not entitled to judicial cognizance (Doumanis v Conzo, 265 AD2d 296) and in the absence of a reply affidavit or affirmation from the defendant addressing the sufficiency of the allegations contained in claimant's submission the technical defect will not be deemed waived (cf., Sam v Town of Rotterdam, 248 AD2d 850). The motion will therefore be treated as having been unopposed.

For purposes of a CPLR 3211 (a) (2) and (8) pre-answer motion to dismiss the Court must assume the truth of the facts alleged by claimant and draw all inferences from those facts in favor of the non-moving party (Bassile v Covenant House, 152 Misc 2d 88, affd 191 AD2d 188, lv to appeal denied 82 NY2d 656).

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 and defense counsel, relying upon a copy of the inmate claim form (attached as Exhibit C to the motion papers), avers that the instant claim was filed prior to the exhaustion of claimant's administrative remedy.

Claimant's failure to comply with the requirements of Court of Claims Act § 10 (9) merits the dismissal of the portion of the claim based upon DOCS alleged loss of the inmate claimant's personal property (see, Sutter v State of New York, Ct Cl, February 28, 2002 [Claim No. 105399, Motion No. M-64590] Corbett, J., unreported; Christian v State of New York, Ct Cl, May 11, 2001 [Claim No. 103806, Motion No. M-63207] Midey, J., unreported). Accordingly, the personal property loss portion of the instant claim is dismissed.

The defendant's motion also seeks the dismissal of that portion of the instant claim which seeks to recover money damages for the confiscation and retention of claimant's knee brace and back brace by a DOCS employee on October 24, 2001 on the ground that the aforementioned property was included in the claimant's inmate claim form (defendant's Exhibit C). It appears to the Court that defense counsel has misconstrued this part of the claim which to the Court appears to assert a cause of action for personal injuries rather than a bailment claim subject to the provisions of Court of Claims Act § 10 (9). The allegations related to claimant's personal suffering over a period of six days beginning October 24, 2001 due to the defendant's alleged improper confiscation and retention of claimant's knee and back braces are deemed sufficient to withstand the defendant's pre-answer motion (see, Heisler v State of New York, 78 AD2d 767; Harper v State of New York, 34 AD2d 865) especially in light of the liberal construction to be afforded such allegations on a motion to dismiss for failure to state a cause of action. Defendant's motion to dismiss the personal injury claim is, therefore, denied while the defendant's motion with regard to claimant's personal property is granted as previously noted.

June 26, 2002
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
  1. Notice of motion dated February 14, 2002;
  2. Affirmation of G. Lawrence Dillon dated February 14, 2002 with exhibits;
  3. Submitted but not considered for reasons stated, supra,"Affirmation" of George Arce dated April 8, 2002 with exhibit.