New York State Court of Claims

New York State Court of Claims

DURAN v. THE STATE OF NEW YORK, #2002-015-307, Claim No. NONE, Motion No. M-65896


Application for late claim relief denied for lack of merit of proposed claim seeking money damages for destruction of claimant's dentures and for personal injury arising out of denial of dental treatment. Claimant failed to exhaust administrative remedy before commencing property loss claim and failed to submit affidavit of dental expert tending to support claim of dental malpractice.

Case Information

MIGUEL DURAN The Court sua sponte amends the caption to reflect the only properly named defendant.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
The Court sua sponte amends the caption to reflect the only properly named defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant's attorney:
Miguel Duran, Pro Se
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Kathleen M. Resnick, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
December 19, 2002
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


Movant's application for late claim relief is denied on the ground that his proposed claim lacks merit. Movant's further request for the assignment of an attorney is denied as moot. The proposed claim seeks to recover $50,000 in damages arising out of the alleged negligent destruction of claimant's dentures by correction officers during a cell frisk at Great Meadow Correctional Facility on April 18, 2002 and for personal injuries sustained as a result of the alleged denial of appropriate dental treatment. Specifically, it is alleged that the correction officers conducting the search of movant's cell either stepped on or dropped a television set upon the dentures causing their destruction. He further alleges that because the Department of Correctional Services (DOCS) failed to replace the dentures he was required to eat meals and snacks using his remaining front teeth and that as a result he suffered damage to his front teeth, infections, ulcers, bleeding and pain for which he should be compensated.

The proposed claim presents two separate theories of recovery which must be addressed. The first cause of action is one for money damages stemming from the negligent destruction of claimant's dentures. This cause of action is governed by Court of Claims Act § 10 (9) which provides:
A claim of any inmate in the custody of the department of correctional services for recovery of 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.
7 NYCRR Part 1700 which implements the personal property claims administrative remedy, provides for an initial review by a "deputy superintendent for administration or functional equivalent" (7 NYCRR 1700.3 [a]); and directs in subparagraph (1) that "[t]he reviewer is responsible for insuring that the claim is processed pursuant to the provisions of this Part and department directive 2733." Section 1700.3 (b) further provides for an appeal to the facility superintendent or his designee for claims up to $500.00 and to the central office director of budget and finance or that individual's designee for claims valued over $500.00. The appeal reviewer shall examine the entire record, secure additional information as needed and render a written decision. Subparagraph (3) indicates that reversal of the initial claims decision should occur "only where the provisions of this Part and department directive 2733 have not been followed."

Subparagraph (4) of paragraph (b) of section 1700.3 advises that there is no further administrative review following appeal although the inmate may pursue a claim in the Court of Claims.

In the instant matter, for reasons not apparent in the record, movant did not immediately file an inmate personal property claim form (form 1421) within five days of the damage to his dentures as required by 7 NYCRR § 1700.4 (a). Instead it appears that movant on or about June 6, 2002 (49 days after the incident) filed a grievance purportedly pursuant to the DOCS Inmate Grievance Program set forth in 7 NYCRR Part 700, et seq.

As part of the grievance process movant was advised by the superintendent on August 7, 2002 that upon issuance of dentures an inmate is responsible for the cost of repair/replacement of the dentures. The superintendent further advised movant that he could seek review of his claim in accordance with Directive #2733. Directive #2733 is not part of the grievance procedure but is rather the basis of the inmate personal property claims procedure set forth in 7 NYCRR Part 1700 (see, Robinson, Matter of, v Herbert, 270 AD2d 882) discussed above.

Although the instant record includes an inmate claim form (form 1421) dated August 8, 2002 alleging destruction of his dentures on April 17, 2002 [sic] movant has not alleged or established that the claim form was ever submitted for review.

Accordingly, claimant has not demonstrated that he has exhausted his administrative remedy pursuant to the inmate personal property claim procedure and is therefore not entitled to seek relief pursuant to Court of Claims Act § 10 (9). The proposed claim, therefore, lacks merit in this regard as it has long been held that "it would be a futile exercise to permit litigation of a clearly baseless lawsuit" (Savino v State of New York, 199 AD2d 254). Movant's application for late claim relief seeking compensation for his damaged dentures is denied.

As noted above, the proposed claim also seeks to recover damages arising from the alleged denial of appropriate dental treatment following the destruction of movant's dentures on April 18, 2002. However, movant has failed to submit either medical records or expert dental opinion evidence to support the allegations in the proposed claim that his gums and remaining teeth were damaged by the absence of dentures or that he was improperly, ineffectually or inadequately treated by State dental personnel so as to cause the conditions of which he complains.

Under the circumstances presented here movant's failure to establish the merit of his alleged dental malpractice claim warrants denial of his late claim application in this regard as well (see, Perez v State of New York, 293 AD2d 918; see also, Fiore v Galang, 64 NY2d 999, 1001; E.K., Matter of, v State of New York, 235 AD2d 540, 541, lv denied 89 NY2d 815).

Since neither of the proposed causes of action have merit it is unnecessary to address the other statutory factors usually considered on a late claim application. Movant's application for late claim relief is denied in all respects and his further request for the assignment of an attorney with regard to the proposed claim is denied as moot.

December 19, 2002
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
  1. Notice of motion dated September 24, 2002;
  2. Affidavit of Miguel Duran sworn to September 24, 2002 with exhibits;
  3. Notice of motion for permission to proceed as poor person sworn to September 24, 2002;
  4. Affirmation of Kathleen M. Resnick dated November 1, 2002.