New York State Court of Claims

New York State Court of Claims

HUGHES v. THE STATE OF NEW YORK, #2002-028-042, Claim No. 105416, Motion No. M-65160


Synopsis


Defendant's motion to dismiss for failure to state a claim is granted as inmate property was lost by Post Office. Defendant failed to establish inmate failed to exhaust administrative remedies (7 NYCRR Part 1700) as no proof of service of denial of property claim was provided.

Case Information

UID:
2002-028-042
Claimant(s):
JERRY HUGHES
Claimant short name:
HUGHES
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
105416
Motion number(s):
M-65160
Cross-motion number(s):

Judge:
RICHARD E. SISE
Claimant's attorney:
JERRY HUGHES, pro se
Defendant's attorney:
HON. ELIOT SPITZER, ATTORNEY GENERAL
BY: Eileen E. Bryant, Esq. Assistant Attorney General
Third-party defendant's attorney:

Signature date:
August 12, 2002
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

The following papers were read on Defendant's motion:

1) Notice of Motion and Supporting Affirmation of Assistant Attorney General Eileen E. Bryant filed May 6, 2002, with annexed Exhibits A - E (Bryant Affirmation);


2) Affidavit in Opposition of Jerry Hughes, filed June 7, 2002, with annexed

Exhibits A - I (Hughes Affidavit)[1].


Filed Papers: Claim and Answer.

Defendant has moved for dismissal pursuant to CPLR §3211(a)(7) alleging that the Claimant has failed to exhaust his administrative remedies and that the Claimant has failed to state a cause of action. The Claimant opposes the motion.

The Claim seeks damages for the loss of personal property when Claimant was transferred from Eastern Correctional Facility to Attica Correctional Facility. Along the way, Claimant made stops at, inter alia, Downstate Correctional Facility. The Claim alleges that of the boxes of personal property shipped from Eastern CF, one box did not make it to Claimant's final destination. The box which did not arrive, and is the subject of this Claim, contained Claimant's art supplies. The at issue box, which was insured, was to be delivered by the United States Post Office, initially to Downstate CF (see, Claim, Exhibit 5 [US Postal Service Insured Mail Receipt]). Ultimately, claimant alleges, the box was retained by the United States Postal Office as dead mail, which the Post Office has acknowledged it can not now locate (see, Claim ¶ 11, Exhibit 9).

The Court begins by examining Defendant's argument that Claimant failed to exhaust his administrative remedies. The procedures regulating personal property claims of inmates, including appeals, are set forth in Title 7 of NYCRR Part 1700. After initial review of the claim by the deputy superintendent for administration or functional equivalent, appeals of claims must be filed within five working days after initial disapproval of the claim (7 NYCRR 1700.4 [d]). Furthermore, once the appropriate appeal is taken and decided, no further administrative review is available, and the only remaining option is for the inmate to pursue a claim in the Court of Claims (7 NYCRR 1700.3 [b] [4]).

There is no dispute that Claimant initiated the review process. Rather, Defendant asserts Claimant failed to timely file an appeal following the initial denial of his claim on July 5, 2001, thereby foreclosing the instant action (Christian v State of New York, Ct Cl, May 11, 2001, Midey, J., Jr., Claim No. 103806, Motion No. M-63207, MacLaw #2001-009-024 [failure to file appeal]; Richards v State of New York, Ct Cl, August 3, 2000, Corbett, J., Jr., Claim No. 102440, Motion No. M-61851, MacLaw #2000-005-526 [failure to file claim]; see also, Jardim v New York State Public Employment Relations Board, 677 NYS2d 693 [failure to file exceptions precludes subsequent Article 78 review]). Claimant denies knowledge of the July 5, 2001 determination until October 2, 2001 at which point he attempted to file an appeal, which was rejected by the Defendant as untimely. On the record before the Court, the only indication as to when Claimant was notified of the July 5, 2001 determination is contained in the October 2, 2001 letter addressed to Claimant which stated "a determination was made... in July, 2001" (see, Claim, Exhibit 3). The fact that "Part 3 - Facility Initial Review" of the claim form (see, Bryant Affirmation, Exhibit B) denying the claim is dated July 5, 2001 does not suggest, let alone establish, transmittal to Claimant (see, e.g., Leon v Martinez, 84 NY2d 83, 88 [documentary evidence must utterly refute factual allegations]). Thus, there remains a question of fact whether there has been a failure by Claimant to exhaust his administrative remedies.[2]

The Defendant's second argument for dismissal is that the United States Postal Service, not the State of New York is the responsible party for Claimant's lost property. Once inmate property is delivered to the U.S. Postal Service for mailing, "beyond that point, [the facility is] no longer responsible" for any loss [Odom v State of New York, Ct Cl, August 14, 2000, Ruderman, J., at p.2, Claim No. 93187; see also, Collins v State of New York, Ct Cl, July 25, 2001, Marin, J., Claim No. 98484, MacLaw #2001-016-057; 7 NYCRR 1700.7 [b][1][i][b]). Taking Claimant's allegations as true, while the Court can not condone the sloppy processing of Claimant's box of art supplies, ultimate responsibility for the box being lost rests with the United States Postal Service. Accordingly, Claimant has failed to state a claim against the Defendant.[3]

Based upon the foregoing, Defendant's motion, M-65160, is GRANTED, and Claim No. 105416, shall be and hereby is dismissed.



August 12, 2002
Albany, New York

HON. RICHARD E. SISE
Judge of the Court of Claims




[1] Although Claimant's opposition papers were received after the return date, the Court has accepted same as Claimant had notified the Court he was in transit and would need additional time to respond to the motion.
[2] For reasons that follow, the Court does not reach what can be characterized as Claimant's estoppel argument (see, Hughes Affidavit, ¶¶ 4, 5; see also, Claim ¶ 5). The Court notes however that Defendant's actions in "rejecting" the claim and directing claimant to provide required information "as soon as possible so that the processing of your claim will not be delayed" (Claim, Exhibit 1) brings into question the propriety of the alleged July 5, 2001 determination disapproving the claim (see, Stroud v State of New York, 184 Misc 2d 876; Dagnone v State of New York, Ct Cl, May 30, 2002, Lebous, J., Claim No. 105609, Motion No. M-64898, MacLaw #2002-019-532).
[3] The Court notes that Claimant has failed to indicate whether he has made a claim under the insurance coverage purchased for the box.