New York State Court of Claims

New York State Court of Claims

McALLISTER v. STATE OF NEW YORK, #2004-018-328, Claim No. 108773, Motion No. M-68531


The claim is dismissed for failure to comply with Court of Claims Act § 11(b).

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 of the State of New York
By: Heather R. Rubinstein, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
September 8, 2004

Official citation:

Appellate results:

See also (multicaptioned case)


Defendant brings a pre-answer motion to dismiss the claim pursuant to CPLR 3211 on the

grounds that the Court lacks subject matter and personal jurisdiction. Claimant has not submitted any opposition to the motion.

Defendant makes three arguments for dismissal of the claim. First, that the claim must be dismissed because it fails to specify the time or place of accrual or provide an adequate description of the nature of the claim in accordance with Court of Claims Act § 11(b). Defendant also alleges that the claim is untimely, based upon the dates set forth in the claim, and there is no indication that Claimant complied with Court of Claims Act § 10(9) prior to filing the claim. Finally, Defendant argues that this Court lacks jurisdiction over any cause of action alleging a violation of the Federal Constitution.
The claim purports to assert three causes of action:
3. The defendants [sic] together, each individually and collectively owed claimant a

duty of care and protection while under New York States [sic] Department of

Correctional Services care, custody and control.

  1. The defendants [sic] rules and regulations for the transfer of inmate's [sic] property have been disregarded and violated by defendants [sic] when they failed to secure claimant's property and deliver said property to claimant.
  1. The defendants [sic] misconduct was gross negligence [sic], when they, together [sic] intentionally disregarded the rules and regulations pertaining to the transfer of inmates [sic] personal property, securing of inmates [sic] personal property and dispensing of inmates [sic] personal property.
6. The defendants [sic] have failed to follow their own rules and regulations.


7. The defendants [sic], together and individually as enumerated above have

violated claimant's constitutional rights as protected under the United

States and New York State by acts of retaliation.

8. In October of 2000, defendants [sic] lost claimants [sic] personal and legal property when transferred from Auburn to Franklin Correctional Facility [sic].

9. Claimant's right to redress matters and wrongs committed by the

defendants [sic] in 2000, 2001, and 2002 is the subject matter of retaliation by the

defendants [sic].

10. The defendants [sic] retaliated against claimant when they together disregarded departmental rules and regulation [sic], causing the lost [sic] of claimant's personal, legal and religious property during transfer from Gouvneur [sic] Correctional Facility.


11. The defendants, together and collectively as enumerated above 3-10 have violated claimant's rights under the State and Federal constitution [sic].

12. Defendant's [sic] have discriminated against claimant when they have used a pattern of retaliation against inmates from S-Unit boxes.

13. The defendant's [sic] unwritten practices and wanton behavior to loose [sic] personal property of inmates who have filed complaints against employees of the state [sic] rather personal and or individually have made claimant a part of class [sic].

14. The defendants [sic], acts [sic] together have violated claimants [sic] rights, duty of care, protection and security.

15. The place where the acts(s) took place are Gouverneur and Auburn Correctional Facility [sic].

16. This claim accrued on or about September 22, 2003.

17. This is a claim by a correctional facility inmate to recover damages for loss of personal property and damages and it is served and filed within 120 days of the exhaustion of claimant's administrative remedies.

18. By the reason of the foregoing, claimant was damaged in the amount of FIFTY THOUSAND DOLLARS ($50,000.00), and claimant demands judgement against the defendants(s) [sic] in for said [sic] amount.

Court of Claims Act § 11(b) requires that the claim state the time and place where the claim arose, the nature of the same, the items of damage and the total sum claimed. Sufficient information must be provided to allow the State to investigate the incident and evaluate its potential liability (Heisler v State of New York, 78 AD2d 767). The State has no obligation to "ferret out or assemble information that [Court of Claims Act] section 11(b) obligates the claimant to allege" (Lepkowski v State of New York, 1 NY3d 201, 208).

The claim does not meet the requirements of Court of Claims Act § 11(b) as it fails to set forth the date the claim arose. Claimant alleges that the State discriminated and retaliated against him for seeking redress for Defendant's alleged wrongdoing in 2000, 2001 and 2002, but provides no time frame for when the State allegedly discriminated or retaliated against Claimant by losing his property. He does state that the accrual date was September 22, 2003, but also states that the claim accrued at both Auburn and Gouverneur Correctional Facilities. There is no indication whether September 22, 2003, is the date his claim accrued for purposes of his lost personal property claim pursuant to Court of Claims Act § 10(9), meaning the date Claimant's administrative remedies were exhausted, or the date the defendant retaliated or discriminated against him. The only reference to the date he lost property was October 2000, almost three and one-half years before he filed this claim, when he was transferred from Auburn Correctional Facility to Franklin Correctional Facility. In addition, although the claim is purportedly at least partially for loss of personal property, he fails to itemize what property was lost and when.

The pleading requirements in the Court of Claims Act are jurisdictional in nature and are strictly construed (Park v State of New York, 226 AD2d 153). The claim must be dismissed for failure to comply with Court of Claims Act § 11(b).

The Court will not address Claimant's remaining contentions.

Defendant's motion is GRANTED and the claim is DISMISSED.

September 8, 2004
Syracuse, New York

Judge of the Court of Claims

The Court has considered the following documents in deciding this motion:

Notice of Motion.................................................................................................1

Affirmation of Heather R. Rubinstein, Esquire, Assistant Attorney General,

in support.................................................................................................2