New York State Court of Claims

New York State Court of Claims

BAILEY v. THE STATE OF NEW YORK, #2002-016-071, Claim No. 105220, Motion No. M-65028


Motion to dismiss on grounds of timeliness of notice of intention and claim was granted in part and denied in part. To the extent the motion was grounded on failure to state a cause of action, it was denied.

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):

Alan C. Marin
Claimant's attorney:
No Appearance
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: James E. Shoemaker, AAG
Third-party defendant's attorney:

Signature date:
July 10, 2002
New York

Official citation:

Appellate results:

See also (multicaptioned case)


This is defendant's motion to dismiss the claim of Kevin Bailey. In his claim, Mr. Bailey alleges that he has been housed in a double bunk cell at Sullivan Correctional Facility in violation of the rules and regulations of the New York State Department of Correctional Services ("DOCS"). The grounds for defendant's motion are that: (1) the claim was not timely served and filed pursuant to the Court of Claims Act (the "Act"); and (2) the claim fails to state a cause of action.

As to timeliness, defendant states that the claim alleges an accrual date of March 27, 2001, citing ¶4 of the Claim. Defendant thus asserts that the notice of intention, which was served on October 2, 2001, and the claim, which was filed and served on November 16, 2001, were not timely pursuant to §10.3 of the Act. Such section requires that the claim be filed and served within 90 days of accrual. In the alternative, a notice of intention may be served within 90 days and a claim then filed and served within two years.

A review of ¶4 of Bailey's claim shows that it states that March 27, 2001 is the date on which claimant was first double bunked. However, claimant goes on to state that the double- bunking continued until at least a date in September 2001. Claim, ¶5. Thus, even if claimant was only double bunked until September 1, 2001, the October 2, 2001 service of the notice of intention and the November 16, 2001 service and filing of the claim fell within 90 days of such date. In short, Bailey's claim is timely as to the ninety day period preceding the October 2, 2001 service of his notice of intention, i.e., the period commencing July 4, 2001.

Defendant also maintains that the claim fails to state a cause of action because "[d]efendant has fully complied with existing rules and regulations in determining that claimant was eligible for double cell housing," noting that Bailey was screened and a "double cell information sheet" was completed. See ¶¶12 and 13 and exhibit D to the April 10, 2002 affirmation of James E. Shoemaker. However, 7 NYCRR §1701.7, which is cited by defendant, provides in subsection (d) that:
No inmate shall be confined in a double-cell for a period of more than 60 days unless such inmate volunteers to remain in the double-cell for a longer period of time. At the expiration of the 60 days, if an inmate does not volunteer to remain in a double-cell, the inmate shall be moved to a single-cell or multiple occupancy housing at either his current facility or a new facility.

As set forth above, Bailey has alleged that he was double-bunked for more than 60 days. He has also alleged that he signed no waiver and that he did not agree to be double-bunked. See Claim, ¶4. Nor has defendant alleged that claimant volunteered to remain double-bunked beyond 60 days.

For the foregoing reasons, having reviewed the parties' submissions[1], IT IS ORDERED that motion no. M-65028 be denied in part and granted in part in that claim no. 105220 shall be dismissed only to the extent it alleges damages prior to July 4, 2001.

July 10, 2002
New York, New York

Judge of the Court of Claims

  1. [1]The Court reviewed defendant's notice of motion with affirmation in support and exhibits A-D. Claimant filed no opposition papers.