New York State Court of Claims

New York State Court of Claims

PETTY v. THE STATE OF NEW YORK, #2004-013-063, Claim Nos. 108850, 108920, Motion Nos. M-68285, M-68493, M-68518


Bailment claims are dismissed as untimely.

Case Information

REGINALD PETTY The Court has sua sponte amended the caption to reflect the only properly named defendant herein.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
The Court has sua sponte amended the caption to reflect the only properly named defendant herein.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
108850, 108920
Motion number(s):
M-68285, M-68493, M-68518
Cross-motion number(s):

Claimant's attorney:
Defendant's attorney:
Attorney General of the State of New York
BY: GREGORY P. MILLER, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
December 20, 2004

Official citation:

Appellate results:

See also (multicaptioned case)


On June 16, 2004, the following papers were read on motions by Defendant for dismissal of the claims, and on motion by Claimant denying the motions to dismiss:

Notice of Motion M-68285 with Affidavit Annexed

Notice of Motion M-68493 with Affidavit and Exhibits Annexed

Notice of Motion M-68518 with Affidavit and Exhibit Annexed

Filed Papers: Claims

This might appear at first to be a convoluted matter, but a brief factual recitation will simplify my review. There are three motions before me.

The first motion, M-68285, filed in lieu of an answer, seeks to dismiss Claim No. 108850 (filed on January 30, 2004) alleging that the claim was untimely served and filed. The third motion, M-68518, also filed in lieu of an answer, seeks to dismiss Claim No. 108920 (filed on February 17, 2004), alleging that the claim was untimely served and filed. It must be noted here that these claims are identical, except that the verification ostensibly affixed to Claim No. 108850 was purportedly nonexistent and as such, both the notice of intention and claim[1] were rejected by the Defendant and the papers treated as a nullity pursuant to CPLR 3022, the very procedure envisioned by the Court of Appeals in Lepkowski v State of New York (1 NY3d 201).

Claimant, realizing the deficiency of his verifications, started over again, serving the Defendant with a verified notice of intention and a verified claim and filing again with the Clerk of the Court, who assigned it Claim No. 108920. The Defendant thus brought an identical motion seeking dismissal of Claim No. 108920, on the basis of untimeliness. The issue of timeliness will be addressed below, and my decision and reasoning with respect thereto will be dispositive as to both of the aforesaid motions and claims.

The second motion arose when, in opposition to the first motion above, Claimant filed papers on April 28, 2004, denominated as a notice of motion, which essentially sought an order denying the motion to dismiss and asserting the timeliness of his claim relative to the exhaustion of his administrative remedies. Since these papers were denominated as a notice of motion, the Clerk assigned it Motion No. M-68493. However, the relief sought therein is merely denial of the dismissal motion. Accordingly, the discussion below with respect to the State's motions to dismiss will be dispositive of all motions pending before me.

The claim herein alleges the negligent loss of Claimant's personal property while he was being transferred from Wende Correctional Facility (Wende) to Sing Sing Correctional Facility (Sing Sing) on "August 17, 1999 through January 9, 2004," and sounds in bailment. Needless to say, the transfer of Claimant, and the transfer of his property, did not take some four and one-half years. But Claimant contends that this later date was the date of the ultimate denial of his institutional claim(s), and thus the exhaustion of administrative remedies which triggered the 120-day period during which he was permitted to commence an action for an inmate's loss of personal property (Court of Claims Act §10[9]).

The issue before me relates to the accrual date of a cause of action sounding in bailment, because the law governing such inmate claims changed during the period of time in question. Until December 7, 1999, an inmate seeking to bring a claim sounding in bailment was constrained by the requirements of Court of Claims Act §10(3) and §11, and was required to serve either a notice of intention to file a claim or a claim within 90 days of accrual of his cause of action.[2] The law changed effective December 7, 1999, and required inmates to exhaust their administrative remedies before they could serve and file a claim sounding in bailment.

Judge Thomas J. McNamara, in Stroud v State of New York (184 Misc 2d 876, 877), articulated the differing procedures, holding that:

Under Court of Claims Act §10(9), effective December 7, 1999 (L 1999, ch 412, part D, §4), an inmate in the custody of the Department of Correctional Services may bring a claim in this court for recovery of damages for injury to, or loss of, personal property only after the inmate has exhausted the administrative remedy established by the Department. The claim must then be served within 120 days after the administrative remedy has been exhausted. Under the rule in effect before December 7, 1999, State inmates were not required to pursue an administrative remedy and the claim had to be served within 90 days after accrual of the claim.

In Stroud, the Court noted that "the claim was timely presented if the new rule applies but is untimely under the old rule" and held that that claimant "was not required to pursue the institutional remedy, and therefore was required by the former provision to present the claim within 90 days of accrual." Since that claim had not been served within that period, it was deemed untimely. In the motion before me, the issue is essentially the same, and I must therefore decide when this claim accrued, and thus whether the new rule or the old rule applies.

Paragraph 3 is identical in both claims:

This claim accrued
at Wende Correctional Facility which is located at P. O. Box 1187, Alden, New York 14004, on August 18, 1999, when the claimant was being transferred from that Facility to Sing-Sing Correctional Facility [emphasis supplied].

Thus, Claimant himself alleges that the claim accrued in August 1999, prior to the effective date of the amendment adding Section 10(9), and thus falls under the jurisdictional requirements of the old rule (Stroud v State of New York, 184 Misc 2d 876, supra). Under the old rule, Claimant would have had to serve his claim or notice of intention within 90 days of August 18, 1999, and since he did not do so until January/February 2004, the claim(s) are untimely served, and the motions seeking their dismissal must be granted.

Even if I do not solely rely upon Claimant's choice of accrual date, I note that he asserts that his bags were packed on August 17, 1999 and that on August 20, 1999, he told correction officers at Sing Sing that one of his bags had not been forwarded to him from Wende. Regardless of Claimant's own assertion of an accrual date, I find that this claim accrued at least when Claimant became aware, on or about August 20, 1999, that some of his property had not been forwarded to him at Sing Sing from Wende (paragraph 8 of both claims). Bailment claims accrue "when the bailor demands the property and the bailee refuses to deliver it" (Heede Hoist & Mach. Co. v Bayview Towers Apts., 74 AD2d 598, 424 NYS2d 517 [1980]). "A delivery of property to the bailee, and the latter's failure to return it, satisfies Claimant's burden of establishing a prima facie case of negligence" (Fontaine v State of New York, Ct Cl, UID #2004-030-569 [Motion No. M-68767], Aug. 30, 2004, Scuccimarra, J.).[3]

I also note that Claimant filed an administrative grievance relating to the allegedly lost property on September 7, 1999 (paragraph 9 of the claims), and thus he commenced administrative review at a time when the 90-day service and filing requirement of Section 10(3) was a jurisdiction imperative (see Stroud v State of New York, 184 Misc 2d 876, supra). The claims are untimely.

Accordingly, Motion Nos. M-68285 and M-68518 are granted and Claim Nos. 108850 and 108920 are both dismissed. Motion No. M-68493 is denied.

December 20, 2004
Rochester, New York

Judge of the Court of Claims

  1. [1]Both served on the same date.
  2. [2]A claimant was also required to file his claim with the Clerk of the Court within 90 days of accrual, or within two years of accrual, if he had first served a notice of intention.
  3. [3]Selected unpublished decisions and orders of the Court of Claims are available via the internet at