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.
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.
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
A claimant then has one
hundred twenty days after said exhaustion to file and serve a claim in the Court
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.