New York State Court of Claims

New York State Court of Claims

RODRIGUEZ v. THE STATE OF NEW YORK, #2004-009-22, Claim No. 108680, Motion No. M-68066


Synopsis


Case Information

UID:
2004-009-22
Claimant(s):
CHAN RODRIGUEZ
Claimant short name:
RODRIGUEZ
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
108680
Motion number(s):
M-68066
Cross-motion number(s):

Judge:
NICHOLAS V. MIDEY JR.
Claimant's attorney:
CHAN RODRIGUEZ, Pro Se
Defendant's attorney:
HON. ELIOT SPITZER
Attorney General
BY: Joel L. Marmelstein, Esq.,
Assistant Attorney GeneralOf Counsel.
Third-party defendant's attorney:

Signature date:
April 13, 2004
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Defendant has brought this motion seeking an order dismissing the claim.

The following papers were considered by the Court in connection with this motion:
Notice of Motion, Affidavit of Lori Dickes 1,2


Filed Papers: Claim

In this claim, which was filed December 22, 2003, claimant seeks damages in the amount of $858.75 for the value of certain items of personal property which were allegedly lost when claimant was transferred from Marcy Correctional Facility to Auburn Correctional Facility on or about September 26, 2003.

In this motion, defendant seeks dismissal based upon claimant's failure to comply with the provisions of Court of Claim Act § 10(9).

Section 10(9) provides that the "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." After the inmate has exhausted such administrative remedy, the claim must then be served and filed within 120 days.

The administrative remedy established by the Department of Correctional Services requires an inmate to follow a two-tier process for pursuing personal property claims. An inmate must file an administrative claim for initial review, and if there is an unsatisfactory result at that level, a claimant must then pursue an administrative appeal prior to the filing of any claim (see, 7 NYCRR § 1700.3).

In this particular matter, defendant has submitted the affidavit of Lori Dickes, Head Account Clerk at Auburn Correctional Facility. In her affidavit, Ms. Dickes states that she processed an administrative claim for the loss of personal property in the amount of $858.75 submitted by claimant in October, 2003. After the claim was rejected, she states that claimant did not pursue any administrative appeal of that decision.

Claimant has not disputed this contention, and in fact, has not responded at all to this motion. Based on the foregoing, the Court finds that by his failure to pursue an administrative appeal of the initial rejection of his claim, claimant did not exhaust his administrative remedies prior to the service and filing of this claim, and therefore did not comply with the requirements of Court of Claims Act § 10(9).

Accordingly, it is

ORDERED, that Motion No. M-68066 is hereby GRANTED; and it is further

ORDERED, that Claim No. 108680 is hereby DISMISSED.



April 13, 2004
Syracuse, New York

HON. NICHOLAS V. MIDEY JR.
Judge of the Court of Claims