New York State Court of Claims

New York State Court of Claims

TAFARI v. THE STATE OF NEW YORK, #2002-019-591, Claim No. 106576, Motion No. M-65889


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

Signature date:
December 9, 2002

Official citation:

Appellate results:

See also (multicaptioned case)


In lieu of answering, 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, opposes the motion.

The Court has considered the following papers in connection with this motion:
  1. Claim, filed September 3, 2002.
  2. Notice of Motion No. M-65889, dated October 4, 2002, and filed October 7, 2002.
  3. Affirmation of James E. Shoemaker, AAG, in support of motion, dated October 4, 2002, with attached exhibit.
  4. Affidavit of Lynette Pastwik, in support of motion, sworn to October 2, 2002.
  5. "Affirmation in Response to Defendants [sic] Motion to Dismiss", of Injah E. Tafari, in opposition to motion, dated October 25, 2002, and filed November 4, 2002, with attached exhibits.
  6. Reply Affirmation of James E. Shoemaker, AAG, in support of motion, dated November 13, 2002, and filed November 15, 2002, with attachments.
This Claim, sounding in bailment, alleges Claimant's personal property was packed and stored when he was transferred from Southport Correctional Facility (hereinafter "Southport") to Wende Correctional Facility (hereinafter "Wende") on or about June 3, 2002. Claimant alleges that he discovered certain items were missing on July 4, 2002, although it appears some of those items were returned on July 19, 2002. (Claimant's Exhibit "B4"). Claimant filed an Inmate Claim Form dated July 10, 2002. (Claimant's Exhibits "C1"-"C6"). Several weeks later Claimant inquired about the status of his claim and was advised that no such claim was on file. (Claimant's Exhibit "D2"). Claimant sent a letter response dated July 31, 2002. (Claimant's Exhibit "D3"). On August 8, 2002, Wende advised Claimant that his claim was being investigated and that a decision would be forthcoming within five weeks.[1] (Claimant's Exhibit "D5"). After hearing nothing within four weeks, Claimant filed this Claim with the Clerk of the Court on September 3, 2002 and served the same on the Attorney General's office by certified mail, return receipt requested, on that same date.

The State's original papers include the Affidavit of Lynette Pastwik who is employed in the business office at Wende and whose duties include processing inmate property claims. Ms. Pastwik averred that Claimant filed an inmate grievance but that there had not yet been any decision on the grievance because the matter was still under investigation. (Affidavit of Lynette Pastwik, ¶ ¶ 5-8). Ms. Pastwik's affidavit is sworn to October 2, 2002. In response, Claimant asserts that the State failed to comply with the time limits for reviewing his initial review as set forth in Department of Correctional Services Directive #2733. Claimant argues that due to the State's delay in meeting those time limits that this Court should deem Claimant as having exhausted his administrative remedies pursuant to CCA 10 (9). In reply, the State represents that since the filing of the initial motion papers Claimant's initial review was completed and denied on October 31, 2002. (Reply Affirmation of James E. Shoemaker, AAG, ¶ 6). The State avers that Claimant has filed an appeal and calculates the deadline for a decision thereon as November 23, 2002.

The State moves for dismissal on the ground that this Claim is premature due to Claimant's failure to exhaust his administrative remedies pursuant to CCA 10 (9) 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.

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). Both of these separate and distinct steps must be completed at the time a claim is filed and served in order for a claimant to be deemed to have exhausted his administrative remedies pursuant to CCA 10 (9). (Richards v State of New York, Ct Cl, August 3, 2000, Corbett, J., Claim No. 102440, Motion No. M-61851 [UID No. 2000-005-526]; Christian v State of New York, Ct Cl, May 11, 2001, Midey, J., Claim No. 103806, Motion No. M-63207 [UID No. 2001-009-024]).[2] By way of this motion, the State argues that Claimant had failed to complete either of these steps as of the date he filed and served this Claim.

On this record there is only one definitive conclusion that can be reached, namely that as of the date Claimant filed and served this Claim (e.g., September 3, 2002) he had not exhausted his administrative remedies and, as such, this Claim is premature pursuant to CCA 10 (9).[3] The fact that Claimant's initial review may have been denied during the pendency of this motion or that the appeal determination is pending (and may by now have been issued) does not alter this disposition since this Court must view the record at the time of the filing of this Claim on September 3, 2002. (CCA 10 [9]).

Accordingly, for the reasons stated above, it is ORDERED that the State's motion to dismiss, Motion No. M-65889, is GRANTED and Claim No. 106576 is DISMISSED.

December 9, 2002
Binghamton, New York

Judge of the Court of Claims

[1]It is unclear whether Wende was considering Claimant's July 31, 2002 letter to be the claim; whether it located the original July 10, 2002 claim form; or whether a second formal claim form was filed.

[2]Unreported decisions from the Court of Claims are available via the Internet at

[3]The Court finds that Claimant has not established the State's failure to comply with the time limits of Directive 2733. Claimant uses the date of his first claim form of July 10, 2002 as the basis of the State's untimeliness, while the State refers to August 8, 2002 as the date of the filing of the initial claim. In either event, this Court finds that even assuming a facility were to miss the time limits as set forth in Directive 2733, CCA 10 (9) would preserve a potential litigant's right to commence a claim since the applicable one hundred twenty day period is not triggered until the exhaustion of the remedies (e.g., the date the appeal is denied).