New York State Court of Claims

New York State Court of Claims

SMITH v. STATE OF NEW YORK, #2005-018-476, Claim No. 110408, Motion Nos. M-70157, CM-70277


Claimant's late claim application is denied and Defendant's cross-motion to dismiss is 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:
Defendant's attorney:
Attorney General of the State of New York
By: KATHLEEN M. ARNOLD, ESQUIREAssistant Attorney General
Third-party defendant's attorney:

Signature date:
July 19, 2005

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant brings a motion for permission to file a late claim pursuant to Court of Claims

Act § 10(6). Defendant opposes the relief and brings a cross-motion to dismiss the claim. The Court will address the cross-motion first.

Claimant filed a claim with the Clerk of this Court on January 26, 2005 seeking $694 for lost property items. Claimant asserts that while an inmate at Gouverneur Correctional Facility the Facility destroyed his property without his consent. An incomplete affidavit of service[1] is attached and filed with the claim. Defendant filed an affidavit from Janet A. Barringer, Senior Clerk in the Albany office of the Attorney General, with the Clerk of the Court on April 15, 2005. Ms. Barringer, in her position at the Attorney General's office, asserts that she is familiar with the record keeping system of the Litigation Bureau of the Attorney General's office regarding notices of intention and claims filed with the Court of Claims or received in the office of the Attorney General. Ms. Barringer states that she made a thorough search of the records of the Attorney General's office and could find no indication that a claim was ever served by this Claimant, although a notice of intention was received on January 18, 2005, by certified mail, return receipt requested. Claimant apparently received a copy of Ms. Barringer's affidavit prompting his late claim application.

Court of Claims Act § 10(9) provides that a claim for loss of personal property of any inmate in the custody of the Department of Correctional Services must be filed and served within 120 days of the date the inmate has exhausted the personal property administrative remedies provided for by the Department of Correctional Services. The New York State Codes, Rules and Regulations indicates that the Department of Correctional Services has established a two-tier system of administrative review for the loss of inmates' personal property which consists of an initial review and an appeal (7 NYCRR § 1700.3). Claimant has provided no indication that he exhausted his administrative remedies. In fact, attached to his late claim motion is a completed "Inmate Claim Form" which has not even been initially reviewed by the Department of Correctional Services.

Defendant's cross-motion must be granted. First, it appears that the claim is premature, in that there is no evidence that Claimant exhausted his administrative remedies before filing the claim in accordance with Court of Claims Act § 10(9). Secondly, it does not appear that a copy of the claim was ever served upon the Attorney General. Both service upon the Attorney General and filing with the Clerk of the Court must be accomplished to commence an action in this Court. The requirements in Court of Claims Act §§ 10 and 11 are jurisdictional prerequisites to commencing an action in this Court (Byrne v State of New York, 104 AD2d 782, 783, lv denied 64 NY2d 607). The failure to serve the Attorney General results in a failure of subject matter jurisdiction, which precludes this Court from hearing the claim (Finnerty v New York State Thruway Authority, 75 NY2d 721, 722; Nish v Town of Poestenkill, 179 AD2d 929, appeal dismissed 79 NY2d 1040). The claim must be DISMISSED.

Claimant seeks permission to file a late claim pursuant to Court of Claims Act § 10(6). Late claim relief however is not available for inmate lost property claims. In Roberts v State of New York, 11 AD3d, 1000, the Appellate Division of the Fourth Department found it was error to grant Claimant's motion to file a late claim for his loss of personal property while an inmate in a State correctional facility because of the Legislature's placement of Court of Claims Act § 10(9), after Court of Claims Act § 10(6). Court of Claims Act § 10(6) permits late claim relief where a notice of intention was not served or a claim filed and served in accordance with the "foregoing subdivisions." Since Court of Claims Act § 10(9) is not one of the "foregoing subdivisions" late claim relief is not available for lost property claims. Although this claim accrued in the Third Judicial Department, the Appellate Division of that Department has not ruled on the issue. As a result, the Court is bound by the finding in Roberts v State of New York.

Claimant's motion is DENIED.

July 19, 2005
Syracuse, New York

Judge of the Court of Claims

The Court has considered the following documents in deciding this motion and cross-motion:

Notice of Motion.......................................................................................1

Affidavit of Mark Smith in support, with exhibits attached thereto.........2

Notice of Cross-Motion.............................................................................3

Affirmation of Kathleen M. Arnold, in opposition to motion and in

support of cross-motion, with exhibits attached thereto................4

Affidavit of Janet A. Barringer, Senior Clerk in the Albany Office
of the Attorney General, in support of cross-motion with

exhibits attached thereto.................................................................5

Notarized letter of Mark Smith dated June 2005, addressed to

David B. Klingaman, Chief Clerk of the Court of Claims..............6

[1] It is a form affidavit of service asserting that something was served on an unspecified day in January 2005 upon Gouverneur Correctional Facility and Hon. Richard E. Sise of the Court of Claims. In the location on the form for the description of what was mailed, Claimant has supplied the complete address for Attorney General Eliot Spitzer. Claimant's signature on the form is notarized on January 24, 2005.