New York State Court of Claims

New York State Court of Claims

STACCHINI v. STATE OF NEW YORK, #2002-018-142, Claim No. 104879, Motion No. M-64456


Synopsis


Defendant's motion to dismiss is GRANTED to the extent that the items allegedly missing but not included in claimant's administrative review at the correctional facility will not be included in this claim. The issue of whether the claim was timely and properly served is reserved for trial.

Case Information

UID:
2002-018-142
Claimant(s):
MARIO J. STACCHINI
Claimant short name:
STACCHINI
Footnote (claimant name) :

Defendant(s):
STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
104879
Motion number(s):
M-64456
Cross-motion number(s):

Judge:
DIANE L. FITZPATRICK
Claimant's attorney:
MARIO J. STACCHINIPro Se
Defendant's attorney:
ELIOT SPITZER
Attorney General of the State of New York
By: G. LAWRENCE DILLON, ESQUIREAssistant Attorney General
Third-party defendant's attorney:

Signature date:
June 4, 2002
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision
Defendant brings a motion to dismiss the claim on several grounds. Defendant argues that the claim should be dismissed for failure to state a cause of action and for failure to timely and properly serve the claim in accordance with Court of Claims Act §§10 and 11. Claimant opposes the motion.

The claim seeks damages for loss of personal property when claimant was placed in the Special Housing Unit on August 3, 2001. Claimant alleges that he placed his property in two secure lockers, using locks purchased from the correctional facility, and that when he received the I-64 form (property sheet form) to review on August 4, 2001, he noted many items were missing. He filed a claim with the facility for the missing property, seeking reimbursement for various items totaling $194.43. His claim was disapproved. Claimant appealed the decision to the superintendent, which was also disapproved on August 17, 2001. Claimant then filed a claim in this Court on September 10, 2001, seeking reimbursement for loss of property in the amount of $337.73.

Defendant's first argument is that the claim is jurisdictionally defective because it fails to set forth a valid cause of action and a legal theory upon which the State is liable. Claimant is
pro se and on a motion to dismiss for failure to state a cause of action, the Court must view the pleadings liberally, accepting the facts in the claim as true, and giving the claimant the benefit of every possible favorable inference. (Hughes v Rowe, 449 US 5, 9-10; Leon v Martinez, 84 NY2d 83, 87) The claim, although not perfect, fully apprizes defendant of claimant's bailment claim. The bailment relationship was created as a result of claimant being placed in the Special Housing Unit. (7 NYCRR 302.2) Claimant has set forth a sufficient description of what he alleges the State failed to do, and has attached a list of the property he asserts he lost. A valid cause of action has been stated and sufficient information has been set forth to meet the requirements of Court of Claims Act §11(b).
Defendant next argues that the claim was not timely or properly served in accordance with Court of Claims Act §§10 and 11(a). Claimant readily admits that he served the claim originally by regular mail on September 7, 2001. This was not proper service and did not obtain jurisdiction over the defendant; thus, this claim is a nullity. (
See, Finnerty v New York State Thruway Auth., 75 NY2d 721, 722-723; Commack Self-Serv. Kosher Meats v State of New York, 270 AD2d 687; Hodge v State of New York, 213 AD2d 766; Charbonneau v State of New York, 178 AD2d 815, 816, aff'd sub nom. Dreger v New York State Thruway Auth., 81 NY2d 721) Claimant asserts in a statement which he attempted to verify, albeit improperly, that he re-served the same claim on the attorney general by certified mail return receipt requested on November 16, 2001. Attached to his statement is the original certified mail postal delivery receipt signed by someone named Ruth (the last name is illegible) at the Utica attorney general's office, dated November 16, 2001, although there is no indication from the receipt what was served upon the assistant attorney general.[1] Defendant did not submit a reply affidavit or affirmation denying the service. However, the original affirmation of Assistant Attorney General G. Lawrence Dillon filed in support of the defendant's motion to dismiss, and dated December 10, 2001, affirms to the Court that as of that date
"[t]he claim should be dismissed for lack of jurisdiction

because Claimant failed to serve the claim by certified

mail, return receipt requested or otherwise comply with

the Court of Claims rules." (Dillon Affirmation ¶10)


Mr. Dillon further affirms that

"[m]ore than the requisite one hundred twenty (120)
days, as set forth in §10(9) of the Court of Claims Act,
has elapsed since the Claim had accrued....no proper

timely Claim has been submitted by the Claimant."

(Dillon Affirmation ¶7)


Under these unusual circumstances, more than these conflicting written submissions are necessary. (Bank of New York v Melito-Bendernagel Assoc., 274 AD2d 531; Hopkins v Tinghino, 248 AD2d 794) The Court will reserve on this issue until trial, at which time the Court will hear testimony regarding the issue of the service and timeliness of the claim to resolve the factual dispute.
Defendant also argues that the claim is defective because claimant has failed to follow the correctional facility's procedure for lost property claims for the property he listed in the claim filed in this Court but not listed on the facility lost property form attached to the claim. As described above, the lost property claim form claimant filed with the facility sought reimbursement for various property totaling $194.43. The claim filed with this Court seeks damages for additional lost property not listed on the facility claim form, specifically: a three pound box "ore" cookies, one bag Nerds candy, 20 muffins, one bag sugar, one jar Folgers Instant, one floor rug, two R.C.F. library books, one insulated coffee cup, one spoon set for cooking , one can opener, four pads of tracing paper, one pack carbon paper, and 16 Crayola markers for a total loss of $337.73. It is defendant's position that since claimant has not exhausted his administrative remedies for the additional property listed in his claim, this property cannot be considered pursuant to Court of Claims Act §10(9).

Claimant responds that on the facility claim form he submitted to the deputy superintendent on August 4, 2001, he reserved the right to amend his claim until he had an opportunity to review all of his property after he was released from the Special Housing Unit. He apparently did not have that opportunity to review all of his property until August 20, 2001. The claim filed in this Court was verified on August 30, 2001.

Court of Claims Act §10(9) provides in relevant part: "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..." The New York State Code of Rules and Regulations, (7 NYCRR §1700-1700.10) sets forth the established administrative procedures for claims involving lost, damaged or destroyed property at a correctional facility. According to §1700.4 an inmate must report a loss as soon as possible after its discovery, and within five days after discovery the inmate must file an "inmate claim form" for the loss with the deputy superintendent. The claim is then initially reviewed within 15 working days, and if disapproved can be appealed within 5 working days after disapproval.

(7 NYCRR §1700.4(a), (b), (c))
Although claimant had already filed a facility claim for some of his missing property on August 4, 2001, upon his discovery of the additional missing property he should have filed another facility claim with the deputy superintendent. His failure to do so means that he did not exhaust his administrative remedies for the property listed as missing in his claim filed with this Court but not listed on his facility claim form dated August 4, 2001. Thus, his claim for the lost property listed above cannot be heard in this Court pursuant to Court of Claims Act §10(9).

Accordingly, based upon the foregoing, defendant's motion is GRANTED to the extent that the items allegedly missing but not included in claimant's administrative review at the correctional facility will not be included in this claim. The issue of whether the claim was timely and properly served is reserved for trial.


June 4, 2002
Syracuse, New York

HON. DIANE L. FITZPATRICK
Judge of the Court of Claims


The Court considered the following documents in deciding this motion:

Notice of Motion........................................................................................1
Affidavit of G. Lawrence Dillon, Assistant Attorney General,

in support, with all exhibits attached thereto..................................2



[1]Claimant also submitted a certified mail receipt signed by Chris Blair at the Utica Chambers of the Court of Claims. This receipt also has no indication what was mailed. A call was placed to the filing office of the Court of Claims in Albany, which indicated that in claimant's court file is a copy of the identical claim filed with the Court on September 10, 2001, marked received on November 9, 2001.