New York State Court of Claims

New York State Court of Claims

BONEZ v. THE STATE OF NEW YORK, #2003-019-504, Claim No. 106264, Motion Nos. M-66015, CM-66146


Claimant's motion to strike State's affirmative defenses is denied; State's cross-motion for dismissal based upon Claimant's failure to comply with CCA 10 (9) is granted; Claim 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):
Claimant's attorney:
Defendant's attorney:
BY: Carol A. Cocchiola, Assistant Attorney General,of counsel
Third-party defendant's attorney:

Signature date:
January 15, 2003

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant, an inmate appearing pro se, moves for an order striking the affirmative defenses contained in the State's Verified Answer. The defendant State of New York (hereinafter "State") opposes said motion and cross-moves for dismissal pursuant to CPLR 3211 and Court of Claims Act ("CCA") 10 and 11.

The Court has considered the following papers in connection with these motions:
  1. Claim, filed June 21, 2002.
  2. Verified Answer, filed July 29, 2002.
  3. Notice of Motion No. M-66015, undated, filed November 6, 2002.
  4. Affidavit of William F. Bonez, in support of motion, sworn to October 29, 2002.
  5. Notice of Cross-Motion No. CM-66146, dated December 12, 2002, and filed December 17, 2002.
  6. Affirmation of Carol A. Cocchiola, AAG, in support of cross-motion and in opposition to motion, dated December 12, 2002, with attached exhibits.
  7. Letter from William F. Bonez to Court, dated December 28, 2002, and received by the Court on January 2, 2003.
  8. Affidavit of William F. Bonez, in opposition to cross-motion, sworn to December 28, 2002, and filed January 2, 2003.
This Claim alleges two bailment causes of action against the State that occurred during his incarceration at Southport Correctional Facility (hereinafter "Southport") and Upstate ("Upstate") Correctional Facility. The Court will outline the administrative histories of both these incidents. First, Claimant alleges that his personal property was lost upon his transfer from Southport to Upstate on September 7, 2001. Claimant filed an institutional grievance (assigned facility claim #840-243-01) which was denied on November 23, 2001. (State's Exhibit A). Thereafter, Claimant's appeal was denied on December 18, 2001.[1] Claimant then sent a handwritten letter to the Department of Correctional Services (hereinafter "DOCS") Office of Inmate Accounts in Albany complaining of said disposition. (Attachment to Claim). On May 15, 2002, the DOCS Office of Inmate Accounts responded to Claimant's inquiry by way of letter simply referring him to the prior denial. (Claim, Exhibit 2).

Secondly, Claimant alleges that the State returned only seven out of his original eight bags of personal property after he was charged shipping costs for all eight bags. (Claim, ¶ ¶ 18 et seq.). This second incident is alleged to have occurred October 27, 2001. Claimant filed another institutional grievance (assigned facility claim #840-284-01) which was denied on December 7, 2001. Claimant pursued an appeal on this matter as well. This appeal was denied on February 12, 2002. Claimant made another inquiry to the DOCS Office of Inmate Accounts and received a letter response dated February 27, 2002. (Claim, Exhibit H).

This Claim, which includes both of these incidents, was filed with the Clerk of the Court on June 21, 2002 and served on the State on that same date.

Claimant's Motion to Strike Affirmative Defenses (Motion No. M-66015)

By way of this motion, Claimant seeks to strike each of the State's three affirmative defenses which allege Claimant's failure to comply with CCA 10 (9) and culpable conduct on behalf of Claimant and a third party. Generally, "[a] party may move to strike any scandalous or prejudicial matter unnecessarily inserted in a pleading." (CPLR 3024 [b]). Affirmative defenses are not dispositive of a claim and are merely assertions of a party, absent prejudice, that will not be stricken. (CPLR 3024; 5 Weinstein-Korn-Miller, NY Civ Prac ¶ 3018.14). None of these affirmative defenses are prejudicial or scandalous in any respect whatsoever. The State properly included all these affirmative defenses in its Verified Answer. Claimant's objection to the State's use of boilerplate language is totally without merit. Claimant's motion is denied in its entirety.

State's Cross-Motion for Dismissal (Cross-Motion No. CM-66146)

The State cross-moves for dismissal based upon Claimant's failure to comply with CCA 10 (9) which 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).

Generally, DOCS has established a two-tier system for handling personal property claims consisting of an initial review and an appeal. (7 NYCRR 1700.3). Both of these separate and distinct steps must be completed at the time a claim is filed and served in order for a claimant to be deemed to have exhausted his administrative remedies pursuant to CCA 10 (9). (Richards v State of New York, Ct Cl, August 3, 2000, Corbett, Jr. J., Claim No. 102440, Motion No. M-61851 [UID No. 2000-005-526]; Christian v State of New York, Ct Cl, May 11, 2001, Midey, Jr. J., Claim No. 103806, Motion No. M-63207 [UID No. 2001-009-024]).[2] A claimant then has one hundred twenty days after said exhaustion to file and serve a claim in the Court of Claims.

With respect to the first incident, Claimant argues in his motion papers that "[t]he finality requirement for Claim #840-243-01 culminated on May 15th, 2002 when the N.Y. State Correction Department budget analyst wrote the claimant...." (Claimant's Affidavit, ¶ 5). This Court disagrees. The appeal on grievance #840-243-01 was denied on December 18, 2001. Claimant's subsequent letter objecting to that determination and the facility's response referring to that denial did not serve to extend the applicable time period. To rule otherwise would permit inmates to willfully extend the date an administrative remedy is deemed exhausted by sending in letters complaining about the outcome of their denied appeals. As such, this Court finds that Claimant exhausted his administrative remedies relative to the first cause of action as of the date said appeal was denied, namely December 18, 2001. Consequently, Claimant had one hundred twenty days thereafter in which to file and serve a claim in this venue which expired on April 18, 2002. This Claim was not filed and served until June 21, 2002 (more than 30 days later) and, as such, this Claim is untimely with respect to the first asserted cause of action and must be dismissed relative thereto pursuant to CCA 10 (9).

Claimant's second cause of action is also untimely. The appeal on the second incident was denied on February 12, 2002. (Claim, Exhibit 6). Again, neither Claimant's subsequent inquiry to the DOCS Office of Inmate Accounts nor their letter response dated February 27, 2002 serve to extend the time periods under CCA 10 (9). Thus, the one hundred and twenty-day period calculated from February 12, 2002 expired on June 12, 2002. Accordingly, this Claim, filed and served on June 21, 2002, was untimely with respect to the second incident as well. Consequently, the second asserted cause of action must be dismissed pursuant to CCA 10 (9).

Finally, the Court notes that to the extent that a notice of intention may have been served in relation to both these incidents is of no legal consequence. The service of a notice of intention is not authorized by CCA 10 (9) and, as such, such service does not extend the time period in which to serve and file a claim under the statute. (Cepeda v State of New York, Ct Cl, October 22, 2001, Midey, Jr., J., Claim No. 104717, Motion No. M-64015 [UID No. 2001-009-049]).

Accordingly, for the reasons stated above, it is ORDERED that Claimant's motion, Motion No. M-66015, is DENIED; and the State's cross-motion, CM-66146, is GRANTED and this Claim is DISMISSED.

January 15, 2003
Binghamton, New York

Judge of the Court of Claims

[1]The appeal was denied by Jeanne S. Nickels from Program Services - Office of Inmate Accounts on the inmate claim form bearing a date of December 18, 2001 (State's Exhibit A), as well as in a letter dated December 19, 2001 from Ms. Nickels. (Claim Exhibit A). In this Court's view, the governing date must be the date indicated on the formal inmate claim form for the same reason Claimant's subsequent letters cannot extend the applicable time periods. (Infra, p 4).

[2]Unreported decisions from the Court of Claims are available via the Internet at