Claimant, an inmate appearing pro se, moves for an order permitting the
"admittance of Reply Answer to Verified Answer." The State of New York
(hereinafter "State") cross-moves for an order dismissing this claim based upon
claimant's failure to comply with Court of Claims Act (hereinafter "CCA") 10 and
11. The court did not receive any additional papers by claimant in opposition
to the State's cross-motion for dismissal.
The underlying claim sounds in bailment. The claim alleges that claimant
discovered some of his personal property was missing after his transfer from
Elmira Correctional Facility to Southport Correctional Facility on October 24,
2003. Claimant filed a grievance which was denied on December 17, 2003 and his
subsequent appeal was denied on March 11, 2004. (Claim, ¶ 5). Thereafter,
claimant filed this claim with the Clerk of the Court on July 14, 2004 and
apparently served the claim on the Attorney General's office on or about that
same date. In a letter dated July 14, 2004, the State rejected the claim as a
nullity because it was unverified.
By all accounts, upon receipt of the State's rejection letter the claimant
verified another identical claim and served it on the Attorney General's office
by certified mail, but without a return receipt requested, on August 5,
The State filed a Verified Answer to
this second version of the claim on September 2, 2004 containing various
jurisdictional defenses including improper service and untimeliness. Claimant's
instant motion seeks to respond to the State's Verified Answer to explain why he
did not properly verify the first version of his claim and why he did not serve
the second version by certified mail, return receipt requested. However, the
court will first address the State's arguments relative to claimant's failure to
establish his compliance with the time constraints of CCA 10 (9) since it is
dispostive of the claim.
CCA 10 (9) governs bailment claims and states that:
[a] 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. Such
claim must be filed and served within one hundred twenty days after the date on
which the inmate has exhausted such remedy.
The administrative remedy referenced in CCA 10 (9) is the Department of
Correctional Services two-tier system for handling personal property claims
which is comprised of an initial review and an appeal. (7 NYCRR 1700.3). Here,
the State concedes that claimant completed this two-step process, but contends
that the claim was not filed and served within the allowable 120 day time
Claimant is deemed to have exhausted
his administrative remedies when his grievance appeal was denied on March 11,
2004. As such, claimant had 120 days from that date to serve and file his
claim, namely July 9, 2004. Here, claimant served and filed an unverified claim
on July 14, 2004 and then served a verified claim on August 5, 2004 by certified
mail, but without a return receipt. This later version of the claim was
improperly served on the State and never filed with the Clerk of the Court. In
any event, all of claimant's attempts to file and serve his claim were beyond
the 120 day time requirement of CCA 10 (9). In sum, this court finds claimant
failed to comply with CCA 10 (9) and, as such, the claim must be dismissed and
the court need not address the parties remaining arguments.
Accordingly, for the reasons stated above, it is ORDERED that the State's
cross-motion to dismiss, Motion No. CM-69343, is GRANTED and Claim No. 109604 is
DISMISSED. Claimant's motion "for admittance of Reply Answer to Verified
Answer", Motion No. M-69181, is DENIED as moot.
Claim, filed July 14, 2004.
Verified Answer, filed September 2, 2004.
Notice of Motion No. M-69181, dated September 21, 2004, and filed September 27,
Affidavit of Joseph Wigfall, in support of motion, unsworn to, and dated
September 22, 2004, with attachments.
Notice of Cross-Motion No. CM-69343, dated November 11, 2004, and filed
November 15, 2004.
Affirmation of Carol A. Cocchiola, AAG, in support of cross-motion, dated
November 11, 2004.