New York State Court of Claims

New York State Court of Claims

BREWER v. THE STATE OF NEW YORK, #2004-009-45, Claim No. 109256, Motion No. M-68604


Defendant's motion to dismiss the claim based upon untimely service and filing of this bailment claim was granted.

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:
Attorney General
BY: Mary R. Humphrey
Senior AttorneyOf Counsel.
Third-party defendant's attorney:

Signature date:
August 18, 2004

Official citation:

Appellate results:

See also (multicaptioned case)


Defendant has brought this pre-answer motion seeking an order of dismissal based upon claimant's alleged failure to timely serve and file his claim.

The following papers were considered by the Court in connection with this motion:
Pre-Answer Motion to Dismiss, Affirmation, with Exhibits 1,2

In this claim, claimant seeks damages for the loss of certain items of personal property while he was under the care and custody of the Department of Correctional Services and housed at Oneida Correctional Facility. In his claim, claimant alleges that certain items of his personal property were lost by facility officials and officers on two separate occasions, June 22, 2003 and August 8, 2003.

This claim was filed with the Clerk of the Court of Claims on April 26, 2004, and as set forth in defendant's motion papers, was served on the Attorney General by certified mail, return receipt requested, on the same date. Defendant has attached a copy of the envelope in which the claim was served as evidence of the date of service (see Exhibit D to Items 1, 2). Additionally, defendant also acknowledges that a notice of intention to file a claim was previously served upon the Attorney General on November 12, 2003 (see Exhibits A and B to Items 1, 2).

Defendant now seeks dismissal of this claim, contending that the claim was untimely served and filed.

This claim is governed by § 10(9) of the Court of Claims Act. This statute provides that any claim alleging the loss of personal property by an inmate is not permitted to be filed "unless and until the inmate has exhausted the personal property claims administrative remedy". Furthermore, the statute requires that any such claim " must be filed and served within 120 days after the date on which the inmate has exhausted such remedy."

Initially, the Court notes that § 10(9) contains no provision permitting the use of a notice of intention to extend the time within which an inmate may bring a claim alleging the loss of personal property. Since the use of a notice of intention to extend the time in which to serve and file a claim is not expressly contained in § 10(9), this Court finds that the notice of intention served by claimant is a nullity (Cepeda v State of New York, Ct Cl, October 22, 2001, Midey Jr., J., Claim No. 104717, Motion No. M-64015 [UID No. 2001-009-49]; Gloster v State of New York, Ct Cl, June 5, 2002, McNamara, J., Claim No. 103662, Motion No. M-64877 [UID No. 2002-011-550]).[1]

Therefore, as specifically required by § 10(9), in order to be timely a claim must be served and filed within 120 days after a claimant has exhausted his administrative remedies (McCullough v State of New York, 3 AD3d 749).

As set forth in defendant's moving papers, claimant's first claim for lost property occurred on June 22, 2003. Claimant filed an administrative claim for this lost property, and claimant exhausted his administrative remedies for this claim on October 17, 2003, when his administrative appeal was denied. Accordingly, pursuant to Court of Claims Act § 10(9), claimant had 120 days from this date to serve and file his claim. According to this Court's calculations, the claim was required to be served and filed no later than February 16, 2004[2]. Since the claim in this instance was not served and filed until April 26, 2004, both the service and filing occurred beyond the time frame in § 10(9), and must therefore be found untimely.

Claimant has also made a second allegation of lost property occurring on August 8, 2003. Claimant also pursued this matter administratively, and his appeal of this administrative claim was denied on October 14, 2003. Again, according to the calculations made by this Court, his claim had to be served and filed no later than February 11, 2004. Since the claim was not served and filed within this time period, it must also be found untimely with regard to this second allegation of lost property.

The service and filing requirements of the Court of Claims Act are jurisdictional prerequisites to the institution and maintenance of a claim against the State, and as such must be strictly construed (Finnerty v New York State Thruway Authority, 75 NY2d 721; Byrne v State of New York, 104 AD2d 782, lv denied 64 NY2d 607). This claim, therefore, must be dismissed based upon the untimely service and filing of the claim.

Accordingly, it is

ORDERED, that Motion No. M-68604 is hereby GRANTED; and it is further

ORDERED, that Claim No. 109256 is hereby DISMISSED.

August 18, 2004
Syracuse, New York

Judge of the Court of Claims

[1] Unpublished decisions and selected orders of the Court of Claims are available via the Internet at
[2] The 120th day after October 17, 2003 was actually Saturday, February 14, 2004. Claimant was therefore permitted to serve his claim no later than the next business day (see General Construction Law § 25-a[1]).