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