New York State Court of Claims

New York State Court of Claims

WIGFALL v. THE STATE OF NEW YORK, #2004-019-599, Claim No. 109604, Motion Nos. M-69181, CM-69343


State's cross-motion to dismiss bailment claim granted due to claimant's failure to comply with CCA 10 (9). Claimant's motion "for admittance of Reply Answer to Verified Answer" is denied.

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:
HON. ELIOT SPITZER, ATTORNEY GENERALBY: Carol A. Cocchiola, Assistant Attorney General, of counsel
Third-party defendant's attorney:

Signature date:
December 7, 2004

Official citation:

Appellate results:

See also (multicaptioned case)


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.[1]

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, 2004.[2] 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 period.[3] 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.

December 7, 2004
Binghamton, New York

Judge of the Court of Claims

The court has considered the following papers in connection with these motions:
  1. Claim, filed July 14, 2004.
  2. Verified Answer, filed September 2, 2004.
  3. Notice of Motion No. M-69181, dated September 21, 2004, and filed September 27, 2004.
  4. Affidavit of Joseph Wigfall, in support of motion, unsworn to, and dated September 22, 2004, with attachments.
  5. Notice of Cross-Motion No. CM-69343, dated November 11, 2004, and filed November 15, 2004.
  6. Affirmation of Carol A. Cocchiola, AAG, in support of cross-motion, dated November 11, 2004.

[1]The filed claim is not verified either, rather claimant included at the end of his claim a statement declaring the truth of his allegations and citing 28 USCA 1746. (Claim, p 3).
[2]The record does not contain a copy of this second version of the claim.
[3]The State preserved this defense by rasing this issue, with particularity, as an affirmative defense in its Verified Answer. (CCA 11 [c]).