New York State Court of Claims

New York State Court of Claims

McKINLEY v. THE STATE OF NEW YORK, #2002-019-525, Claim No. 105389, Motion Nos. M-64727, M-64809


State's motion to dismiss bailment claim granted due to Claimant's failure to exhaust administrative remedies pursuant to CCA 10 (9); Claimant's motion for summary judgment is denied as moot.

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):
M-64727, M-64809
Cross-motion number(s):

Claimant's attorney:
Defendant's attorney:
BY: James E. Shoemaker, Assistant Attorney General, of counsel
Third-party defendant's attorney:

Signature date:
April 9, 2002

Official citation:

Appellate results:

See also (multicaptioned case)


The State of New York (hereinafter "State") moves for an order dismissing this claim alleging Claimant's failure to comply with Court of Claims Act (hereinafter "CCA") 10 (9). Claimant, an inmate appearing pro se, responds with a "Notice of Motion" and "Reply Affirmation"[1] in which he opposes the State's motion and seeks summary judgment relief as well. The State opposes Claimant's motion for summary judgment.

The Court has considered the following papers in connection with this motion:
  1. Claim, filed December 24, 2001.
  2. Notice of Motion No. M-64727, dated February 13, 2002, and filed February 15, 2002.
  3. Affirmation of James E. Shoemaker, AAG, in support of Motion No. M-64727, dated February 13, 2002.
  4. Affidavit of Leon Muller, in support of Motion No. M-64727, sworn to February 13, 2002.
  5. Notice of Motion No. M-64809, dated February 19, 2002, and filed March 6, 2002.
  6. "Reply Affirmation", of Sincere McKinley, in support of Motion No. M-64809, and in opposition to Motion No. M-64727, sworn to March 1, 2002.
  7. Affirmation of James E. Shoemaker, AAG, in support of Motion No. M-64727 and in opposition to Motion No. M-64809, with attached exhibit.
This Claim, sounding in bailment, alleges that on or about November 23, 2001, various items of Claimant's personal property were lost during Claimant's transfer from Elmira Correctional Facility to Sing Sing Correctional Facility. This Claim was filed with the Clerk of the Court on December 24, 2001 and, according to the State, served upon the Attorney General's office by certified mail, return receipt requested, on January 7, 2002.

The State moves for dismissal on the grounds that this Claim is premature due to Claimant's failure to exhaust his administrative remedies pursuant to CCA 10 (9). CCA 10 (9) expressly states that:
[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 twenty days after the date on which the inmate has exhausted such remedy.[2]

In support of its motion, the State submits the Affidavit of Leon Muller, a correction officer at Sing Sing Correctional Facility, whose duties include processing and investigating inmate property claims. (Affidavit of Leon Muller, ¶ 2). Officer Muller avers that his search of the relevant records at Sing Sing Correctional Facility did not locate any inmate claim by this Claimant. (Affidavit of Leon Muller, ¶ 4). In response, Claimant argues that he has exhausted administrative remedies. More specifically, Claimant's papers, including the Claim, contain the following three representations regarding his pursuit of administrative remedies:

[o]n the 30th of November claimant by then had try to talk to someone about the recovery of his property plus filed a grievance requesting that this incident be looked into.[3] (Claim, ¶ 11).

[h]as exhausted the personal property claim with the administrative department on November 23, 2001, at the Sing Sing Correctional Facility plus, filed an inmate Grievance Complaint, Grievance #34571/01 for the missing property on December 8, 2001, hearing was held on December 18, 2001, I.G.R.C. response was Grievance denied with Clarification stated: according to Directive #4040, grievant is advised to pursue this matter via the Claims Department.[4] (Claimant's Reply Affidavit, ¶ 5).

[a]n inmate claim form form was filed out by the claimant to Sing Sing Correctional Facility at the receiving Facility on November 23, 2001, and is yet to recive an response back.... (Claimant's Reply Affidavit, ¶ 6).

Generally, the Department of Correctional Services has established a two-tier system for handling personal property claims consisting of an initial review and an appeal. (7 NYCRR 1700.3). The Court finds that Claimant has failed to establish his compliance with 7 NYCRR 1700.3 for the reasons stated herein. Initially, the Court is unclear whether Claimant is representing that he filed a grievance that was rejected (Claimant's Reply Affidavit, ¶ 5), or that he filed a grievance which was ignored. (Claimant's Reply Affidavit, ¶ 6). In any event, assuming, arguendo, this Court was to accept at face value Claimant's allegation that he submitted a grievance, Claimant does not allege that he ever pursued an appeal as set forth in 7 NYCRR 1700.3 (b). Furthermore, Claimant has not provided any supporting documentation other than his own assertions. The Court finds that Claimant's bare assertions are insufficient to dispute Mr. Muller's affidavit.

Consequently, the Court finds Claimant has not demonstrated that he exhausted the available administrative remedies pursuant to CCA 10 (9) and, as such, may not yet pursue his claim in this venue. (Richards v State of New York, Ct Cl., August 3, 2000, Corbett, J., Jr., Claim No. 102440, Motion No. M-61851; Christian v State of New York, Ct Cl., May 11, 2001, Midey, J., Jr., Claim No. 103806, Motion No. M-63207). Accordingly, Claim No. 105389 must be dismissed and the Court need not address the merits of Claimant's motion for summary judgment. Parenthetically, however, the Court notes that Claimant's papers were insufficient to meet his burden on a summary judgment motion to present evidentiary facts establishing his right to judgment as a matter of law. (Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 1067).

Accordingly, for the reasons stated above, it is ORDERED that the State's motion to dismiss, Motion No. M-64727, is GRANTED and Claim No. 105389 is DISMISSED; and Claimant's motion for summary judgment, Motion No. M-64809 is DENIED as moot.

April 9, 2002
Binghamton, New York

Judge of the Court of Claims

[1]The Court will refer to this document as the "Reply Affidavit" since it appears to be properly sworn to before a notary public.
[2]CCA 10 (9) became effective on December 7, 1999 (L 1999, c.412) and is thus applicable to this case.
[3]Due to the frequency of errors, the Court will not interject "sic" at the point of each mistake when quoting from Claimant's papers.
[4]The December dates are difficult to read and may actually be either the 8th or the 18th.