2) Affidavit in Opposition of DaVon Battee filed August 20, 2004 (Battee
) with annexed Exhibits
Filed Papers: Verified Claim filed September 6, 2002; Verified Answer filed
October 16, 2002.
At all times relevant, Claimant was an inmate at the Defendant's Coxsackie
Correctional Facility. The underlying Claim alleges two causes of action. The
first is a bailment claim in which Claimant alleges a food package with a value
of $39.84 was lost by the Defendant after it was delivered to Defendant by
Claimant's wife at the Coxsackie Correctional Facility. The second cause of
action seeks punitive damages.
Defendant moves for dismissal based upon its first affirmative defense, that
the Claim is untimely served, a defense that was preserved with particularity in
its answer (see Court of Claims Act §11[c]; Sinacore v State of
New York, 176 Misc 2d 1, 6; Fowles v State of New York, 152 Misc 2d
Generally, the Department of Correctional Services has established a two-tier
system for handling personal property claims consisting of an initial review and
an appeal. (7 NYCRR 1700.3). Both of these separate and distinct steps must be
completed at the time a claim is filed and served in order for a claimant to be
deemed to have exhausted his administrative remedies pursuant to CCA 10 (9).
(Richards v State of New York, Ct Cl, Corbett, J., Claim No. 102440, UID
No. 2000-005-526, August 3, 2000; Christian v State of New York, Ct Cl,
Midey, J., Claim No. 103806, UID No. 2001-009-024, May 11, 2001). Court of
Claims Act §10(9) further requires that a claim must be filed and served
within one hundred twenty days after the date on which the inmate has exhausted
Here, there is no dispute that the claim accrued on July 14, 2001 (see
Battee Affidavit ¶ 5). The parties disagree however, as to when
Claimant exhausted his administrative remedies. Defendant maintains that
Claimant's time to commence this action began to run upon the denial of the
personal property claim on September 19, 2001 by the Superintendent (Arnold
Affirmation ¶ 5; Exhibit B). Claimant asserts that his time began to
run on May 9, 2003 (Battee Affidavit ¶ 11a) when an inmate grievance
he filed was denied because only then had he fully exhausted his "available
administrative remedies" (id. ¶ 7).
Claimant's argument is unpersuasive and his reliance upon Beatty v
Goord, 210 F Supp 2d 250, is misplaced. Court of Claims Act § 10(9),
by its plain and unambiguous language, requires exhaustion of the "personal
property claims administrative remedy, established for inmates by the
department" (id.). Resort to the inmate grievance process applicable to
other disputes does not extend Claimant's time to commence his bailment claim.
Therefore, Claimant had 120 days from September 19, 2001 (see Blanche v State
of New York, 3 Misc 3d 830 [accrual is measured from date of denial]) to
initiate this action. As such, the service and filing of his Claim in September
2002 renders same untimely.
As to Claimant's second cause of action for punitive damages, the Court sua
sponte dismisses same as punitive damages are not available against the
State of New York as a matter of public policy (Sharapata v Town of Islip,
56 NY2d 332; Wheeler v State of New York, 104 AD2d 496).
Accordingly, the Defendant's motion is granted and Claim No. 106592 shall be
and hereby is dismissed in its entirety.