New York State Court of Claims

New York State Court of Claims

LEBRON v. THE STATE OF NEW YORK, #2004-031-116, Claim No. 104381, Motion No. M-68984


Synopsis


Inmate claim for lost property filed within 120 days of exhaustion of remedies is not untimely. Defendant's motion to dismiss denied

Case Information

UID:
2004-031-116
Claimant(s):
ELVIN LEBRON
Claimant short name:
LEBRON
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
104381
Motion number(s):
M-68984
Cross-motion number(s):

Judge:
RENÉE FORGENSI MINARIK
Claimant's attorney:
ELVIN LEBRON, PRO SE
Defendant's attorney:
HON. ELIOT SPITZER
New York State Attorney General
BY: RICHARD B. FRIEDFERTIG, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
September 10, 2004
City:
Rochester
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)

.
Decision

The following papers, numbered 1 to 4, were read on motion by Defendant for an order dismissing the claim:
1. Defendant's Notice of Motion, filed August 24, 2004;
2. Affidavit of Richard B. Friedfertig, Esq., sworn to August 19, 2004, with attached exhibits;
3. Claimant's Affidavit, sworn to September 1, 2004;
4. Filed Papers: Claim and Answer. This is Defendant's motion seeking dismissal of the claim as untimely. The claim, filed on June 6, 2001 and served upon Defendant on June 4, 2001, alleges that Defendant is responsible for the loss of Claimant's property in three separate incidents at Attica Correctional Facility between June and October of 2000. Claimant alleges in his claim that his administrative remedies for the first two incidents were exhausted on February 5 and February 12, 2001, respectively. He alleges that Defendant has failed and refused to respond to his administrative appeal of the third incident.

In support of its motion, Defendant asserts that Claimant failed to file his notice of intention to file a claim within 90 days of the last incident in October of 2000. However, when a claim is for damages for the loss of personal property of an inmate confined in a State facility, the provisions of CCA § 10(9) are controlling. That section reads:
"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."
Although Defendant does not directly address this issue, the claim itself demonstrates that Claimant exhausted his administrative remedies relating to the August 3, 2000 incident (lost photographs) on February 5, 2001. The claim having been filed on June 6, 2001 (the 121st day) is, therefore, untimely as it relates to this incident. From the record before me, there is no evidence that the claim, as it relates to the other two incidents, is untimely. Furthermore, taking Claimant's assertions as true, as I must in such applications, Defendant's alleged failure to respond to Claimant's appeal of the third incident should not be permitted to obstruct Claimant's ability to seek redress in the Court of Claims.

Accordingly, it is hereby

ORDERED, that Defendant's motion to dismiss the claim is granted in part and the Claimant's cause of action relating to a property loss on August 3, 2000 is dismissed. Defendant's motion is, in all other respects, denied.

September 10, 2004
Rochester, New York

HON. RENÉE FORGENSI MINARIK
Judge of the Court of Claims