New York State Court of Claims

New York State Court of Claims

RIVERA v. THE STATE OF NEW YORK, #2002-019-573, Claim No. NONE, Motion No. M-65597


Synopsis


Claimant's motion for permission to proceed is denied as moot.

Case Information

UID:
2002-019-573
Claimant(s):
JOSE RIVERA
Claimant short name:
RIVERA
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
NONE
Motion number(s):
M-65597
Cross-motion number(s):

Judge:
FERRIS D. LEBOUS
Claimant's attorney:
JOSE RIVERA, PRO SE
Defendant's attorney:
HON. ELIOT SPITZER, ATTORNEY GENERAL
BY: James E. Shoemaker, Assistant Attorney General,of counsel
Third-party defendant's attorney:

Signature date:
September 26, 2002
City:
Binghamton
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant moves for an order granting him permission to file a late claim pursuant to Court of Claims Act (hereinafter "CCA") 10 (6) relative to lost personal property. The State of New York (hereinafter "State") opposes the motion as being unnecessary.


The Court has considered the following papers in connection with this motion:
  1. Notice of Motion No. M-65597, dated July 31, 2002, and filed August 5, 2002.
  2. Affidavit of Jose Rivera, in support of motion, sworn to August 1, 2002.
  3. Proposed Claim, sworn to August 1, 2002.
  4. Affirmation of James E. Shoemaker, AAG, in opposition to motion, dated August 21, 2002, and filed August 26, 2002.
It appears Claimant has filed this motion based on his confusion relative to the statutory requirements for the service and filing of a bailment claim pursuant to CCA 10 (9). The proposed claim asserts that officials at Southport Correctional Facility lost some of Claimant's personal property on January 28, 2002. Prior thereto on January 22, 2002, Claimant had been transferred to Attica Correctional Facility in order to see a dental specialist. In Claimant's absence, Southport officials transferred Claimant's belongings to a different cell. Upon Claimant's return, he found 10 of his law books to have been lost in the transfer between cells. The proposed claim further alleges that Claimant filed an initial grievance that was denied on April 21, 2002 and a subsequent appeal was denied on May 30, 2002. Claimant filed this motion with the Clerk of the Court on August 5, 2002.


The nature of the proposed claim is clearly one of bailment and, as such, is governed by CCA 10 (9). CCA 10 (9) sets forth special regulations applicable to inmate bailment claims which 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.

Here, Claimant is deemed to have exhausted his administrative remedies on the date that his grievance appeal was denied, namely May 30, 2002. As such, the period within which Claimant had to file and serve a claim in this matter would not expire until September 27, 2002. Accordingly, at the time Claimant filed this motion his 120 days to file and serve a claim had not yet expired and he did not need to seek Court permission to do so. Moreover, the State avers that Claimant has already properly served the proposed claim on the Attorney General's office by certified mail, return receipt requested, and only need file the claim with the Clerk of the Court.


In view of the foregoing, the Clerk of the Court is directed to copy the proposed claim appended to the Notice of Motion and designate it a Claim. The Claim shall be given the appropriate number as if it had been filed on August 5, 2002, the date on which Claimant filed his motion papers. Defendant shall have forty days from its receipt hereof to interpose an answer, if it has not already so.


Accordingly, based upon the foregoing, Claimant's motion, No. M-65597, is DENIED AS MOOT and the proposed claim is deemed a claim.


September 26, 2002
Binghamton, New York

HON. FERRIS D. LEBOUS
Judge of the Court of Claims