New York State Court of Claims

New York State Court of Claims

SMITH v. THE STATE OF NEW YORK, #2005-015-218, Claim No. 107896, Motion No. M-73271


Defendant's motion to dismiss bailment claim as untimely was granted.

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:
Jeff Smith, Pro Se
Defendant’s attorney:
Honorable Andrew M. Cuomo, Attorney General
By: Paul F. Cagino, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
July 20, 2007
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


The defendant's motion to dismiss the claim for lack of jurisdiction upon the claimant's alleged failure to timely file and serve the claim is granted. On June 17, 2003 the claimant, an inmate proceeding pro se, filed and served a claim for damage to and loss of certain personal property allegedly occurring between November 19, 2002 when his property was packed for shipment to Great Meadow Correctional Facility and November 26, 2002 when the property was received at that facility and the loss/damage was discovered. Claimant filed an administrative claim which was disapproved on January 22, 2003. The initial determination was appealed on January 23, 2003 and was sustained by the Superintendent on January 27, 2003. In a memorandum by Wesley Perry, Claims Officer, dated January 30, 2003 the claimant was informed that his "next course" was to file a claim in the Court of Claims. The memorandum appears to be initialed by the claimant as received on February 3, 2003. In opposition to the defendant's motion, the claimant confirmed his receipt of the administrative determination of his appeal on February 3, 2003.

Court of Claims Act § 10 (9) requires an inmate seeking to recover damages for lost or damaged personal property to file and serve a claim within 120 days after the date on which the inmate exhausted his or her administrative remedy. Defendant established that the claim was not filed and served within this time frame. Although the accrual date of a claim for lost or damaged property is determined by reference to the date of receipt of the administrative determination (see Blanche v State of New York, 17 AD3d 1069 [2005]), here the administrative determination was admittedly received on February 3, 2003 thereby requiring a timely claim to be filed and served by June 3, 2003. The claim filed and served on June 17, 2003 was therefore untimely.

Claimant's service of a notice of intention to file a claim on February 27, 2003 does not extend the period in which to file and serve a claim under Court of Claims Act § 10 (9) . Unlike Court of Claims Act § 10 (2), (3), (3-a), (3-b) and (4), there is no provision in Court of Claims Act § 10 (9) for serving a notice of intention to file a claim. As a result, the time within which the claim must be filed and served is not extended by the service of a notice of intention ( see Pristell v State of New York, 40 AD3d 1198 [2007]; Gloster v State of New York, 6 Misc 3d 1001[A] [Ct Cl 2002]).

Defendant's motion to dismiss for lack of jurisdiction based on the time limitation set forth in Court of Claims Act § 10(9) is granted and the claim is dismissed.

July 20, 2007
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:

  1. Notice of motion dated April 24, 2007;
  2. Affirmation of Paul F. Cagino dated April 24, 2007 with exhibits;
  3. Reply of Jeff Smith sworn to May 2, 2007.