Notice of Motion, Affirmation, with Exhibits 1,2
"Answer to Motion to Dismiss", with Attachments 3
In his claim (see Exhibit B to Items 1,2), claimant contends that food stamps
in excess of $800.00 were either lost, stolen, or misplaced from his personal
property when he was transferred from the custody of the New York State
Department of Correctional Services into the custody of the State Office of
As set forth in his claim, claimant alleges that his expected release date from
custody of the Department of Correctional Services was August 6, 2004, but that
several months prior to this date, he was transferred to the Psychiatric Center
in Marcy, New York. Claimant alleges that upon his transfer to the Central New
York Psychiatric Center, he was not allowed to inspect his personal property
which had been packed and sent with him to this center.
Claimant further alleges that upon the completion of his criminal sentence, he
was transferred from the Central New York Psychiatric Center to Creedmoor
Psychiatric Center, apparently upon a civil confinement. Upon his arrival at
Creedmoor, claimant inspected his personal property and discovered that his food
stamps were missing.
Claimant further alleges that he was heavily medicated upon his transfer, and
it was not until January 24, 2005, that he fully realized that his food stamps
were missing, and at that time he began to make inquiries and filed a complaint
with the Attorney General.
Eventually, claimant filed this claim with the Clerk of the Court of Claims on
April 27, 2005, and served his claim upon the Attorney General on July 25, 2005.
Upon these uncontested facts, defendant now seeks an order dismissing the claim
due to untimely service of the claim.
Pursuant to Court of Claims Act § 10(3), a claim alleging an unintentional
tort such as bailment must be served upon the Attorney General and filed with
Clerk of the Court of Claims within 90 days from the date of accrual, unless
within such time period a written notice of intention to file a claim is served
upon the Attorney General.
Bailment claims brought by inmates in the custody of the Department of
Correctional Services ("DOCS"), however, are governed by the provisions of Court
of Claims Act §10(9). This statute provides that any claim alleging the
loss of personal property by an inmate may not be filed "unless and until the
inmate has exhausted the personal property claims administrative remedy", and
that it must then "be filed and served within one hundred twenty days after the
date on which the inmate has exhausted such remedy."
In this particular matter, there is no dispute that claimant was an inmate in
DOCS custody when his property was packed for the transfer of claimant to the
custody of the Office of Mental Health. After his transfer, however, claimant
was no longer in DOCS custody and therefore was unable to comply with the
procedural requirements of § 10(9) that he would have had to fulfill prior
to instituting a claim as an inmate. Accordingly, the Court determines that the
service and filing of this particular bailment claim is controlled by the time
limitations set forth in Court of Claims Act § 10(3), which requires that a
claim be served and filed within 90 days from the date of accrual, and not by
the provisions of § 10(9).
In this motion, defendant contends that this claim accrued on the date of
claimant's transfer from DOCS custody to the Office of Mental Health on June 3,
2004. Since the claim was not served upon the Attorney General until
July 25, 2005, defendant argues that this claim is clearly untimely.
In his claim, however, claimant alleges that he did not discover his loss of
personal property until August 6, 2004, when he was transferred from Central New
York Psychiatric Center to Creedmoor Psychiatric Center, when he was finally
permitted to inspect his bags of personal property. Claimant further contends
that he was unable to pursue any remedies for this loss until January 24, 2005,
because he was continually kept under heavy medication at Creedmoor Psychiatric
Center. However, even if the Court was to accept either of these dates as the
date of accrual of his claim, service of the claim upon the Attorney General on
July 25, 2005 was not made within 90 days of accrual in any event.
The provisions of the Court of Claims Act relating to the time and manner of
service and filing are jurisdictional prerequisites to the maintenance of a
claim, and as such must be strictly construed (Greenspan Bros. v State of New
York, 122 AD2d 249; Phillips v State of New York, 237 AD2d 590).
This Court, therefore, does not have the discretion to overlook defects in the
time or service of a claim. Since the service made by claimant upon the
Attorney General on July 25, 2005 was not timely made (even if the Court gives
claimant every benefit of doubt and accepts a date of accrual most favorable to
claimant), the claim is jurisdictionally defective and must be dismissed.
Based on the foregoing, therefore, it is
ORDERED, that Motion No. M-70576 is hereby GRANTED; and it is further
ORDERED, that Claim No. 110811 is hereby DISMISSED.