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
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.
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
. 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
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.