New York State Court of Claims

New York State Court of Claims

BAILEY v. THE STATE OF NEW YORK, #2003-016-067, Claim No. 107189, Motion No. M-66376


Inmate's claim concerning lost of legal work on removed library computer was dismissed.

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):

Alan C. Marin
Claimant's attorney:
Kevin Bailey
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: James E. Shoemaker, Esq., AAG
Third-party defendant's attorney:

Signature date:
September 2, 2003
New York

Official citation:

Appellate results:

See also (multicaptioned case)


This is defendant's motion to dismiss the claim of Kevin Bailey. In his underlying claim, Mr. Bailey asserts that he lost legal papers he was in the process of preparing when defendant removed computers in which the documents were stored from the Sullivan Correctional Facility Law Library on January 4 and 7, 2002.[1] Bailey's claim contains five causes of action: (1) that defendant was negligent in removing the computers without providing him the opportunity to first retrieve his legal documents; (2) that defendant "act[ed] under the grounds of bailment and/or constructive bailment when [it] . . . removed a . . .Computer from the . . . Library that contained personal property . . . belonging to claimant . . ."; (3) that defendant was negligent in violating a confidentiality right of claimant in allowing "an unidentified member from the Department of Correctional Services MIS Division to enter into" the computer used by claimant and containing his "confidential Legal work/documents . . ."; (4) and (5) that defendant negligently investigated claimant's institutional claim and grievance concerning the lost legal work.

Bailey served defendant with a notice of intention on April 11, 2002, served his claim on January 2, 2003 and filed his claim on January 13, 2003. See the February 5, 2003 affirmation of James E. Shoemaker and exhibits A and B thereto.

With regard to claimant's first and third causes of action, i.e., that defendant was negligent in removing the computers without first allowing him to retrieve his legal work, and that defendant violated a confidentiality interest of claimant in "enter[ing] into" the computer used by claimant, such causes of action accrued, as set forth above, no later that January 7, 2002. Section 10.3 of the Court of Claims Act provides that a claim for such causes of action must be served and filed within 90 days of accrual or, in the alternative, that a notice of intention be served within such 90 days. In this case, claimant served a notice of intention on April 11, 2002, 94 days after accrual. Such service was untimely for the purposes of the Act and this Court thus lacks jurisdiction over such causes of action. See, e.g., Byrne v State of New York, 104 AD2d 782, 480 NYS2d 225 (2d Dept 1984), lv denied 64 NY2d 607, 488 NYS2d 1023 (1985).

With regard to Bailey's bailment cause of action, §10.9 of the Court of Claims Act 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, Bailey's institutional claim was denied, he appealed, and his appeal was denied on May 16, 2002. Bailey did not serve and file his claim until January 2, 2003 and January 13, 2003, respectively, well beyond the 120-day period set forth in §10.9 of the Act.[2] Accordingly, the Court lacks jurisdiction over this cause of action.

In Bailey's fourth and fifth causes of action, he essentially asserts that defendant negligently investigated the institutional claim and grievance he made with regard to the loss of his legal work. Such is not a recognized cause of action independent of a cause of action for the loss itself. See, e.g., Dolberry v State of New York, Ct Cl dated May 6, 2003 (unreported, claim no. 105972-A, motion no. M-66119, motion no. M-66247, cross-motion no. M-66248, Collins, J.).

For the foregoing reasons, having reviewed the parties' submissions[3], IT IS ORDERED that motion no. M-66376 be granted and claim no. 107189 be dismissed.

September 2, 2003
New York, New York

Judge of the Court of Claims

  1. [1]It appears from the attachments to Bailey's claim that after the removal of the computers from the library, the contents thereof were transferred to a disc to the extent possible and efforts were made to provide inmates who had saved documents on such computers with their work. It is unclear whether claimant ultimately received his work back.
  2. [2]Bailey served a notice of intention to file a claim on April 11, 2002, prior to the exhaustion of his administrative remedy, but even if he had served it after May 16, 2002, 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.); and Dagnone v State of New York, Ct Cl dated May 30, 2002 (unreported, claim no. 105609, motion no. M-64898, Lebous, J.).
  3. [3]The Court reviewed defendant's notice of motion with affirmation in support and exhibits A and B. Claimant submitted no opposition papers.