New York State Court of Claims

New York State Court of Claims

ABREU v. THE STATE OF NEW YORK, #2003-015-365, Claim No. NONE, Motion No. M-67347


Prisoner's motion for late claim relief denied where claimant failed to even allege that he had exhausted his administrative remedy prior to making motion.

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:
Carlos Abreu, Pro Se
Defendant’s attorney:
Honorable Eliot Spitzer, Attorney General
By: Kathleen ResnickAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
October 27, 2003
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


Movant's application for late claim relief pursuant to Court of Claims Act § 10 (6) is denied. The proposed claim submitted on the motion seeks to recover $86.89 being the stated value of a KTV brand television set purchased by the movant on January 15, 2001 at the Great Meadow Correctional Facility Commissary. Movant alleges that on November 22, 2002 he requested that the TV be mailed to his mother in the Bronx prior to his transfer from Great Meadow to Upstate Correctional Facility and, further, that he signed a disbursement form authorizing the deduction of costs attendant to mailing the TV from his inmate account. Movant alleges that his mother never received the property. On February 6, 2003 claimant, who was then housed at Clinton Correctional Facility, filed an administrative claim pursuant to 7 NYCRR Part 1700 seeking to recover the alleged value of his missing property. The administrative claim was disapproved upon initial review by the Head Account Clerk at Clinton on February 24, 2003 on the grounds that movant's claim was untimely pursuant to Directive 2733 (see, 7 NYCRR § 1700.4 [a]) which requires a claim to be filed within five days of discovery of the alleged loss (see, defendant's Exhibit C). It does not appear that movant pursued an otherwise available appeal to the facility's superintendent.

Section 10 (9) of the Court of Claims Act specifically provides:
9. 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.

As noted above movant seeks permission to file a late claim alleging negligence on the part of Department of Correctional Services (DOCS) which resulted in the loss of his personal property. Although on a motion for late claim relief the Court generally weighs and considers the six factors set forth in Court of Claims Act 10 (6), consideration of those factors here would serve no useful purpose since an inmate personal property claim may not be filed in this Court unless and until the administrative remedy provided in 7 NYCRR Part 1700, including the appeal mechanism provided in section 1700.3(b), has been exhausted.

Movant's affidavit in support of the motion fails to allege the exhaustion of his administrative remedy and defendant's submission of a photocopy of movant's administrative claim form supports its contention that movant failed to appeal the initial denial of his claim to the facility superintendent as permitted in 7 NYCRR § 1700.3 (b) (1). The movant has failed to submit a reply affidavit alleging that he in fact exhausted his administrative remedy through the taking of an appeal.

In an unreported decision entitled Gomez v State of New York, Ct Cl, August 16, 2000 [Claim No. None, Motion No. M-61701], McNamara, J., the Court observed the following in denying the application of the movant therein for late claim relief:
The claim process is a two-tier system consisting of an initial review and an appeal (7NYCRR § 1700.3). Here, Claimant filed an institutional claim but did not prosecute an appeal of the initial review. In as much as an appeal of the initial administrative determination was available but not pursued, Claimant has not exhausted the administrative remedy (see, Matter of Jardim v New York State Pub. Empl. Relations Bd., 265 AD2d 329) and therefore, cannot yet pursue the claim in this court. Accordingly, the motion is denied.
A similar result is reached relative to the instant matter. An inmate in the custody of the Department of Correctional Services may not bring suit in this Court for costs associated with the loss or destruction of his or her personal property until the personal property claims administrative remedy referenced in Court of Claims Act § 10 (9) has been fully exhausted. As the movant herein has failed to establish that he appealed the initial denial of his administrative claim he has failed to meet the requirements of the Act. Failure to comply with the statutory language requiring exhaustion of administrative remedies precludes the filing of a claim and, therefore, requires denial of movant's application for late claim relief.

October 27, 2003
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
  1. Notice of motion dated July 29, 2003;
  2. Affidavit of Carlos Abreu sworn to July 29, 2003 with exhibit;
  3. Affirmation of Kathleen Resnick dated September 16, 2003 with exhibits.