New York State Court of Claims

New York State Court of Claims

DAGNONE v. THE STATE OF NEW YORK, #2002-019-532, Claim No. 105609, Motion No. M-64898


State's motion to dismiss bailment claim granted due to Claimant's failure to exhaust administrative remedies pursuant to CCA 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:
BY: Carol A. Cocchiola, Assistant Attorney General,of counsel
Third-party defendant's attorney:

Signature date:
May 30, 2002

Official citation:

Appellate results:

See also (multicaptioned case)


The State of New York (hereinafter "State") moves for an order dismissing this claim based upon Claimant's failure to comply with Court of Claims Act (hereinafter "CCA") 10 (9). Claimant, an inmate, proceeding pro se, opposes the motion.

The Court has considered the following papers in connection with this motion.
  1. Claim, filed February 14, 2002.
  2. Notice of Motion No. M-64989, dated March 20, 2002, and filed March 22, 2002.
  3. Affirmation of Carol A. Cocchiola, AAG, in support of motion, dated March 20, 2002, with attached exhibits.
  4. "REPLY AFFIRMATION" of Salvatore Dagnone, in opposition to motion, dated March 28, 2002, and filed April 8, 2002.
This Claim sounds in bailment and alleges that on June 30, 2001, Claimant was placed into the special housing unit at Elmira Correctional Facility, but that his personal property was not packed until July 2, 2001. Claimant alleges that various items of his personal property were stolen through the bars of his locked cell during this interim period. Claimant filed an initial inmate grievance which was denied on September 7, 2001. On September 24, 2001, Claimant served a Notice of Intention upon the Attorney General's office. On September 25, 2001, Claimant's superintendent's appeal of his initial adverse decision was denied. This Claim was served upon the Attorney General's office by certified mail, return receipt requested, on February 11, 2002 and filed with the Clerk of the Court on February 14, 2002. By way of this motion, the State seeks dismissal of this Claim due to Claimant's failure to serve and file his claim within the 120-day period set forth in 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.

The administrative remedy referenced in CCA 10 (9) is the Department of Correctional Services (hereinafter "DOCS") two-tier system for handling personal property claims which is comprised of an initial review and an appeal. (7 NYCRR 1700.3). Here, the State concedes that Claimant completed this two-step process, but contends that this Claim was not filed and served within one hundred twenty days from the date on which Claimant exhausted his administrative remedy. Additionally, the State argues that Claimant's service of a Notice of Intention within the 120-day period has no legal effect in relation to a CCA 10 (9) matter or, stated another way, does not extend the time for filing and service of a claim.

The State has submitted a copy of Claimant's "Inmate Claim Form" showing that Claimant's initial grievance was denied on September 7, 2001, and his appeal was disapproved by Superintendent Bennett on September 25, 2001. As such, the date on which Claimant exhausted his remedy is the date of the appeal's denial on September 25, 2001.[1] Pursuant to CCA 10 (9), Claimant had 120 days from that date to serve and file his claim, namely January 23, 2002. However, Claimant did not serve and file his Claim until February 11, 2002 and February 14, 2002, respectively. Consequently, the filing and service of this Claim did not comply with the time requirements of CCA 10 (9). Claimant concedes the untimeliness of his claim, but alleges that the delay was the fault of the correctional facility and not his own. More specifically, Claimant avers as follows:
[o]n January 2, 2002, claimant submitted the claim with the attached paperwork to be processed by certified mail, return receipt requested to the facility business office by giving it to the 11-7 shift officer.
[o]n information and belief, claimant cannot state why the facility business office withheld the processing of his claim from January 2, 2002, until on or about the time that it was allegedly sent to the Attorney General's Office and the Claim Court.

(Affidavit of Salvatore Dagnone, ¶ ¶ 5 & 6).

In other words, Claimant is arguing that the State should be estopped from raising the issue of timeliness due to its own culpable conduct in causing the delay. The concept of estoppel has been invoked in determining compliance with the service requirements of CCA 10 and 11, where it is well-settled that defects in mailing by an inmate can result, upon proper proof, in an estoppel if the State is the cause of the delay. (Wattley v State of New York, 146 Misc 2d 968). Although estoppel may well be applicable in proper cases under CCA 10 (9), Claimant has failed to set forth sufficient proof warranting its application in this instance. Here, Claimant avers that on January 2, 2002, he signed his claim before a notary public and on that same date submitted the claim for processing to the facility. The State, however, was not served with the Claim until over one month later on February 11, 2002. Although the Claim was in fact sworn to on January 2, 2002, Claimant has not submitted any supporting proof that he delivered his Claim to correctional facility personnel for processing on that same date. For instance, Claimant, as an inmate, would have had to request a disbursement from his account in order to pay the certified mail, return receipt requested, postage. However, Claimant did not submit a copy of a disbursement form or any other proof supporting his allegation. (McCants v State of New York, Ct Cl., June 8, 2001, Read, P.J., Claim No. 103533, Motion Nos. M-63000 & M-63065 [estoppel applied where claimant submitted disbursement/refund request slip showing that he requested service by certified mail, rather than regular mail used by facility]). Without such proof, the Court has no way of determining whether Claimant himself held onto the Claim before giving it to prison officials or whether there was some delay due to Claimant's own failure to adhere to some internal facility mail regulations. Accordingly, the Court finds that the Claimant's mere allegation of the State's failure to act is insufficient to overcome the presumption of regularity. (Wattley v State of New York, 146 Misc 2d at 969-970). Consequently, the Court finds that Claimant has failed to submit sufficient proof warranting the application of estoppel against the State in this instance.

Parenthetically, the State also argues that the Notice of Intention served on September 24, 2001, did not extend the time period in CCA 10 (9) because the statute does not provide for a Notice of Intention. Claimant has not addressed this issue. Although the State cites no supporting case law, this principle has been previously recognized in the Court of Claims. (Cepeda v State of New York, Claim No. 104717, Motion No. M-64015 [CCA 10 (9) "contains no provision permitting the use of a notice of intention to extend the time within which to bring such a claim...."]). In this Court's view, CCA 10 (9) does not expressly permit the use of a notice of intention to extend the time in which to serve and file a claim and, as such, Claimant's service of a Notice of Intention on September 24, 2001, was of no legal consequence.

In sum, this Court finds Claimant failed to comply with CCA 10 (9) and, as such, may not pursue his claim in this venue.

Accordingly, for the reasons stated above, it is ORDERED that the State's motion to dismiss, Motion No. M-64898, is GRANTED and Claim No. 105609 is DISMISSED.

May 30, 2002
Binghamton, New York

Judge of the Court of Claims

[1]The Court has used the date of the denial as the trigger date since Claimant has not argued otherwise or offered any other date such as the date he received notification of the superintendent's denial. (Cepeda v State of New York, Ct Cl., October 22, 2001, Midey, Jr. J., Claim No. 104717, Motion No. M-64015).