New York State Court of Claims

New York State Court of Claims

PEREYDA v. STATE OF NEW YORK, #2002-018-191, Claim No. 106173, Motion No. M-65655


Defendant's motion is granted and claim is dismissed pursuant to 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:
Defendant's attorney:
Attorney General of the State of New York
By: JOEL L. MARMELSTEIN, ESQUIREAssistant Attorney General
Third-party defendant's attorney:

Signature date:
November 21, 2002

Official citation:

Appellate results:

See also (multicaptioned case)

Defendant brings this motion to dismiss the claim for failure to comply with Court of Claims Act §10(9), which states:
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. Such claim

must be filed and served within one hundred and twenty days after

the date on which the inmate has exhausted such remedy.

Claimant has submitted no opposition to the motion.

Defendant alleges that Claimant filed an administrative claim with Marcy Correctional Facility on June 19, 2002, 16 days after he filed his claim with this Court. The claim was denied on June 27, 2002, and no appeal from that decision was taken. Thus, defendant argues that claimant still has not utilized all of his administrative remedies; but in any event, clearly filed his claim in this Court before his administrative remedies were exhausted.

The New York State Code of Rules and Regulations indicates that the Department of Correctional Services (hereinafter DOCS) has established a two-tier system of administrative review for the loss of inmates personal property which consists of an initial review and an appeal (7 NYCRR §1700.3).

The claim and an attached unsworn document with exhibits labeled, "Brief on Behalf of Franklyn Pereyda" indicates that on June 7, 2001, claimant was moved to Downstate Correctional Facility, and thereafter transferred to federal custody and moved to Pike County Jail in Pennsylvania where he discovered that his "personal Parole clothes were missing" (Claim ¶ 2). Claimant then corresponded with the correctional facility from June 28, 2001 until February 25, 2002, in an effort to get the facility to send his clothing to his mother. The facility refused. In a letter from Lee Jubert, Deputy Superintendent for Security at Marcy Correctional Facility dated March 25, 2002, claimant was advised that the facility had forwarded his personal property to Pike County Jail on February 22, 2002. Claimant asserts that he waited two weeks and when he still did not receive his clothing he forwarded a letter dated March 12, 2002 to Gary Greene, Superintendent of Marcy Correctional Facility (Exhibit "G"). In that letter, claimant indicates that he is submitting an Inmate Claim Form for his lost personal property, although claimant does not attach a copy of the form. Attached as Exhibit "H" is a copy of a memorandum to claimant from Lee Jubert, Deputy Superintendent for Security, dated March 25, 2002 advising that his claim was denied. Included as Exhibit "I" is a letter dated March 29, 2002 to Mr. Greene appealing the denial of his claim. In that letter he notes that the denial of his claim was not submitted on the standard Inmate Claim Form, which includes a place for an appeal, so he requested that the letter be considered his formal appeal. Claimant asserts that he did not receive any response. Curiously, on the copy of the Inmate Claim Form, dated March 12, 2002, attached to defendant's paperwork, the initial review of the claim which is on the standard form, was not completed until June 27, 2002.

Claimant's recitation of the administrative review of his loss of personal property varies significantly from defendant's version. Unfortunately, claimant has failed to respond to this motion. In support of defendant's position, the Court has before it the affidavit of Laurie Arria, Principal Account Clerk at Marcy Correctional Facility, whose duty it is to review inmate administrative claims for loss or damage to personal property. Ms. Arria asserts that the Inmate Claim Form was received at Marcy Correctional Facility on June 19, 2002. Ms. Arria reviewed claimant's claim on June 27, 2002 and denied it. She states that she forwarded a copy of the decision to claimant at Pike County Jail on the same day, and no appeal has been pursued by claimant.

Accordingly, this Court is constrained to find that claimant has failed to exhaust his administrative remedies and the claim that he filed with this Court on June 3, 2002 must be dismissed in accordance with Court of Claims Act §10(9). Defendant's motion is GRANTED and the claim is DISMISSED.

November 21, 2002
Syracuse, New York

Judge of the Court of Claims

The Court considered the following documents in deciding this motion:

Notice of Motion....................................................................................1

Affirmation of Joel L. Marmelstein, Assistant Attorney General,

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

No opposing documents were filed by claimant.