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,
Claimant served a notice of intention on defendant on October 1, 2001, within
120 days after his administrative remedy was
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
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
, IT IS ORDERED that claim no.
104902 be dismissed.