New York State Court of Claims

New York State Court of Claims

SURDIS v. THE STATE OF NEW YORK, #2003-016-038, Claim No. 104902, Motion No. M-66816


Synopsis


Claim was dismissed for failure to comply with §10.9 of the Court of Claims Act.

Case Information

UID:
2003-016-038
Claimant(s):
KRISTOFER SURDIS
Claimant short name:
SURDIS
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
104902
Motion number(s):
M-66816
Cross-motion number(s):

Judge:
Alan C. Marin
Claimant's attorney:
Kristofer Surdis, Pro SeNo Appearance
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Carol A. Cocchiola, Esq., AAG
Third-party defendant's attorney:

Signature date:
June 4, 2003
City:
New York
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

This is defendant's motion to dismiss the claim of Kristofer Surdis on the grounds that it fails to comply with §10.9 of the Court of Claims Act (the "Act"). In his underlying claim, Mr. Surdis alleges that because of defendant's negligence, he realized on April 14, 2001 that items of his personal property, specifically, cassette tapes, were lost in connection with his transfer to the Special Housing Unit at Sullivan Correctional Facility. This claim is governed by §10.9 of the Act[1], which provides 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.


In this case, claimant made an internal claim for the lost cassette tapes on July 13, 2001. Such claim, given facility claim number 690-1432-01, was denied on July 27, 2001. Claimant then appealed to the superintendent and such appeal was denied on August 2, 2001. See ¶5 of the May 13, 2003 affirmation of Carol A. Cocchiola (the "Cocchiola Aff.) and exhibits B and C thereto. Surdis' administrative remedy was thus exhausted on August 2, 2001.[2]

Claimant served a notice of intention on defendant on October 1, 2001, within 120 days after his administrative remedy was exhausted.[3] He also filed his claim within such 120-day period, on September 14, 2001. However, he did not serve the claim until January 9, 2002, when it was received by the Albany office of the Attorney General and then on January 18, 2002, when it was received by the Poughkeepsie office of the Attorney General. See ¶¶2 and 3 of the Cocchiola Aff. and exhibits B and C thereto. Both such service dates are beyond the 120-day period.

Section 10.9 of the Act, unlike various other sections thereof (§§10.2, 10.3. 10.3-a,

10.3-b and 10.4) makes no provision for the service of a notice of intention and refers solely to the filing and service of a claim. Moreover, it has been held that the service of a notice of intention within the 120-day period in an inmate lost property case "is of no legal consequence. The service of a notice of intention is not authorized by [Court of Claims Act §10.9] and, as such, such service does not extend the time period in which to serve and file a claim under the statute." Bonez v State of New York, Ct Cl dated January 15, 2003 (unreported, claim no. 106264, motion no. M-66015, cross-motion no. CM-66146, Lebous, J.). See also Cepeda v State of New York, Ct Cl dated October 22, 2001 (unreported, claim no. 104717, motion no. M-64015, Midey, J.); Dagnone v State of New York, Ct Cl dated May 30, 2002 (unreported, claim no. 105609, motion no. M-64898, Lebous, J.). Because Surdis failed to serve his claim within the statutory 120-day period, this Court lacks jurisdiction over the claim. See Cepeda, supra.

In view of the foregoing, having reviewed the submissions[4], IT IS ORDERED that claim no. 104902 be dismissed.

June 4, 2003
New York, New York

HON. ALAN C. MARIN
Judge of the Court of Claims




  1. [1]Section 10.9 was added by legislative amendment in 1999. See Chapter 412, Part D, §2, of the Laws of 1999.
  2. [2]In a notice of intention that Surdis filed, discussed further below, he asserts that his administrative remedy was exhausted on August 2, 2001. See exhibit A to the Cocchiola Aff.
  3. [3]The notice of intention refers to a lost colander in addition to the cassette tapes; the claim itself makes no reference to the colander.
  4. [4]Along with the pleadings, the Court reviewed defendant's notice of motion with affirmation in support and exhibits A-C. Claimant submitted no opposition papers.