New York State Court of Claims

New York State Court of Claims

SOTO v. THE STATE OF NEW YORK, #2005-009-058, Claim No. 110811, Motion No. M-70576


Synopsis


Defendant's motion to dismiss this bailment claim based upon untimely service was granted.

Case Information

UID:
2005-009-058
Claimant(s):
ALEXANDER SOTO The Court, sua sponte, has amended the caption to reflect the State of New York as the only proper defendant before this Court.
Claimant short name:
SOTO
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :
The Court, sua sponte, has amended the caption to reflect the State of New York as the only proper defendant before this Court.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
110811
Motion number(s):
M-70576
Cross-motion number(s):

Judge:
NICHOLAS V. MIDEY JR.
Claimant's attorney:
ALEXANDER SOTO, Pro Se
Defendant's attorney:
HON. ELIOT SPITZER
Attorney General
BY: Timothy P. Mulvey, Esq.,
Assistant Attorney GeneralOf Counsel.
Third-party defendant's attorney:

Signature date:
November 29, 2005
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

Defendant has brought this motion seeking an order dismissing the claim based upon untimely service.

The following papers were considered by the Court in connection with this motion:
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 Mental Health.

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.[1]

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.


November 29, 2005
Syracuse, New York

HON. NICHOLAS V. MIDEY JR.
Judge of the Court of Claims




[1] In his moving affirmation (Item 2), defendant's attorney affirms that no notice of intention to file a claim was served upon the Attorney General relative to this claim, a contention which has not been disputed by claimant.