New York State Court of Claims

New York State Court of Claims

McCULLOUGH v. THE STATE OF NEW YORK, #2003-019-502, Claim No. 106814, Motion No. M-66098


State's motion to dismiss bailment claim granted due to Claimant's failure to comply with CCA 10 (9).

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:
Defendant's attorney:
BY: James E. Shoemaker, Assistant Attorney General,of counsel
Third-party defendant's attorney:

Signature date:
January 15, 2003

Official citation:

Appellate results:

See also (multicaptioned case)


The State of New York (hereinafter "State") moves for an order dismissing this claim based upon Claimant's failure to comply with Court of Claims Act (hereinafter "CCA") 10 (9). The Court has not received any papers in opposition from or on behalf of Claimant.

The Court has considered the following papers in connection with this motion:
  1. Claim, filed October 21, 2002.
  2. Notice of Motion No. M-66098, dated November 25, 2002, and filed November 27, 2002.
  3. Affirmation of James E. Shoemaker, AAG, in support of motion, dated November 25, 2002, with attached exhibits.
This Claim sounds in bailment. Claimant alleges that on May 8, 2002 he was transferred out of Elmira Correctional Facility through various correctional facilities ultimately arriving at Riverview Correctional Facility (hereinafter "Riverview"). Upon arrival at Riverview, Claimant asserts that he discovered that his typewriter was damaged. The Claim then sets out the time line of Claimant's administrative pursuits including the denial of his initial grievance on May 29, 2002 and that his appeal to the superintendent was denied on June 20, 2002.

This Claim was served upon the Attorney General's office by certified mail, return receipt requested, on October 21, 2002 and filed with the Clerk of the Court on that same date. By way of this motion, the State seeks dismissal of this Claim due to Claimant's failure to serve and file this Claim within the 120 day period set forth in CCA 10 (9). CCA 10 (9) expressly states 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.

(Emphasis added).

The administrative remedy referenced in CCA 10 (9) is the Department of Correctional Services (hereinafter "DOCS") two-tier system for handling personal property claims which is comprised of an initial review and an appeal. (7 NYCRR 1700.3). Here, the State has submitted a copy of Claimant's "Inmate Claim Form" showing that Claimant's initial grievance was denied on May 29, 2002, and his appeal was disapproved by the superintendent on June 20, 2002.[1] As such, the date on which Claimant exhausted his remedy is the date of the appeal's denial, namely June 20, 2002.[2] Accordingly, Claimant had 120 days from that date to serve and file his claim, namely October 18, 2002. However, Claimant did not serve and file his Claim until October 21, 2002. Consequently, the filing and service of this Claim did not comply with the time requirements of CCA 10 (9).

In sum, this Court finds Claimant failed to comply with CCA 10 (9) and, as such, may not pursue his claim in this venue.

Accordingly, for the reasons stated above, it is ORDERED that the State's motion to dismiss, Motion No. M-66098, is GRANTED and Claim No. 106814 is DISMISSED.

January 15, 2003
Binghamton, New York

Judge of the Court of Claims

[1]Although the date on the form could be construed as reading "6/26/02" rather than "6/20/02", the Claim itself refers to the date of denial as the 20th and Claimant has failed to appear or argue otherwise on this motion.

[2]In this Court's view, the proper trigger date is the date of the superintendent's denial. To the extent that some courts have found that the date of notification of the denial governs, Claimant has not appeared to present this argument nor offered any proof that any other alternate date is applicable. (Cepeda v State of New York, Ct Cl., October 22, 2001, Midey, Jr. J., Claim No. 104717, Motion No. M-64015; George v State of New York, Ct Cl, March 19, 2002, Fitzpatrick, J., Claim No. 103748, Motion Nos. M-63206 & M-63879 [UID No. 2001-018-098]). Unreported decisions from the Court of Claims are available via the Internet at