New York State Court of Claims

New York State Court of Claims

RIVERA v. THE STATE OF NEW YORK, #2002-031-009, , Motion No. M-64405


Claimant's motion for permission to file a late claim adjourned pending submissions from both parties regarding the issue of exhaustion of claimant's administrative remedies

Case Information

SANTIAGO RIVERA Caption amended sua sponte to show the only proper defendant.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
Caption amended sua sponte to show the only proper defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):

Motion number(s):
Cross-motion number(s):

Claimant's attorney:
Defendant's attorney:
New York State Attorney General
BY: REYNOLDS E. HAHN, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
March 26, 2002

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers, numbered 1 to 3, were read on motion by Claimant for an order permitting him to file a late claim:
  1. Notice of Motion dated November 25, 2001;
  2. Statement of Santiago Rivera, dated November 25, 2001 and annexed exhibits; and
  3. January 11, 2002, letter of Reynolds E. Hahn, Esq.
Upon the foregoing papers, the motion is adjourned pending further submission from each party as to whether Claimant has exhausted his administrative remedies. Claimant, Santiago Rivera, has moved pursuant to the Court of Claims Act (CCA) §10(6), for an order granting him leave to file a late Claim alleging loss of certain personal property. Defendant offers no opposition and asserts that Claimant's motion is unnecessary because both the notice of intention to file a claim and the claim appear to have been "properly served." As explained below, however, this is not necessarily so.

According to Claimant, the claim accrued between November 19, 2000 and December 2, 2000. Claimant mailed a notice of intention to file a claim upon the office of the Attorney General by certified mail, return receipt requested, on December 28, 2000. Claimant mailed the claim upon the Office of the Attorney General by certified mail return receipt requested on November 25, 2001. The Attorney General acknowledges both receipt and proper service of the claim on December 7, 2001.

However, when the claim involved is one for damages for the loss of personal property of an inmate confined in a State facility, the provisions of CCA §10(9) are controlling. That section reads:
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.
According to this section, if a Claimant has not exhausted his administrative remedies, no valid claim can be asserted. Whether or not Claimant exhausted his administrative remedies then becomes the important consideration. Recently Judge Philip Patti addressed a similar situation in Edwards v State of New York (Ct Cl, December 7, 2001 [Motion No. M-63697 - MacLaw No. 2001-013-026).[1] In that well-reasoned opinion, Judge Patti indicated that, even though exhaustion of remedies was in the nature of an affirmative defense and therefore not a pleading requirement for a timely filed claim, it was an issue that must necessarily be reviewed in an application for permission to file a late claim as "it would be futile to permit the filing of a legally deficient claim which would be subject to immediate dismissal, even if the other factors tend to favor the granting of the request." (Prusack v State of New York, 117 AD2d 729, 730; see also Savino v State of New York, 199 AD2d 254).

Here, Claimant has not alleged that he exhausted his administrative remedies prior to submitting this motion. While the papers before me indicate that Claimant initiated his administrative remedies, I am unable to ascertain whether or not Claimant exhausted his administrative remedies. Accordingly, in the interests of judicial economy, I will adjourn this motion to May 22, 2002, to permit both parties to make further submissions on this issue.

March 26, 2002
Rochester, New York

Judge of the Court of Claims

[1]This and other Court of Claims decisions may be found on the Court of Claims website at