New York State Court of Claims

New York State Court of Claims

FARRAKHAN v. THE STATE OF NEW YORK, #2005-019-583, Claim No. 111459, Motion No. M-70926


Synopsis


State's motion to dismiss is granted due to claimant's failure to properly serve claim, as well as failure to comply with CCA 10 (9); claim dismissed.

Case Information

UID:
2005-019-583
Claimant(s):
M.M. FARRAKHAN, #87-A-3610
Claimant short name:
FARRAKHAN
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
111459
Motion number(s):
M-70926
Cross-motion number(s):

Judge:
FERRIS D. LEBOUS
Claimant's attorney:
M.M. FARRAKHAN, PRO SE
Defendant's attorney:
HON. ELIOT SPITZER, ATTORNEY GENERALBY: Geoffrey B. Rossi, Assistant Attorney General, of counsel
Third-party defendant's attorney:

Signature date:
November 28, 2005
City:
Binghamton
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

In lieu of an answer, the State of New York (hereinafter "State") moves to dismiss this claim for lack of jurisdiction due to claimant's failure to comply with Court of Claims Act (hereinafter "CCA") 10 (9). Claimant, an inmate appearing pro se, opposes the motion.

The underlying claim asserts that claimant was moved to the special housing unit in Elmira Correctional Facility on or about March 4, 2005 without the opportunity to inventory his personal property. Claimant alleges that when he reviewed his property on March 11, 2005 he discovered that various items were missing. On March 15, 2005, claimant filed an inmate grievance regarding his missing property which was denied on May 4, 2005. Claimant's administrative appeal of said denial was disapproved on May 20, 2005.


This claim itself was served upon the Attorney General's Office on October 3, 2005, by certified mail, return receipt requested, and filed with the Clerk of the Court on October 4, 2005.


CCA 10 (9) governs bailment claims and states as follows:
[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.


The administrative remedy referenced in CCA 10 (9) is the Department of Correctional Services two-tier system for handling personal property claims which is comprised of an initial review and an appeal. (7 NYCRR 1700.3). Here, the State concedes that claimant completed this two-step process, but contends that the claim was not filed and served within the allowable 120 day time period. Claimant is deemed to have exhausted his administrative remedies when his grievance appeal was denied on May 20, 2005. As such, claimant had 120 days from that date to serve and file his claim, namely until September 19, 2005.[1] Here, claimant served his claim on October 3, 2005 and filed the claim on October 4, 2005 both of which were outside the statutory 120 day time period. As such, the court finds claimant failed to comply with CCA 10 (9) and, as such, the claim must be dismissed.


Accordingly, for the reasons stated above, it is ORDERED that the State's motion to dismiss, Motion No. M-70926, is GRANTED and Claim No. 111459 is DISMISSED.


November 28, 2005
Binghamton, New York

HON. FERRIS D. LEBOUS
Judge of the Court of Claims


The court has considered the following papers in connection with this motion:
  1. Claim, filed October 4, 2005.
  2. Notice of Motion No. M-70926, dated November 3, 2005, and filed November 7, 2005.
  3. Affirmation of Geoffrey B. Rossi, AAG, in support of the motion, dated November 3, 2005, with attached exhibits.
  4. "Responding to the assistant attorney general notice of motion", of M.M. Farrakhan, sworn to November 15, 2005, and filed November 23, 2005.

[1]The 120 day time period expired on Saturday, September 17, 2005 and thus the time period was extended to Monday, September 19, 2005. (General Construction Law 25-a). Contrary to claimant's arguments, General Construction Law 25-a provides that when the last day of the period falls on a Saturday, Sunday, or public holiday, the time period is extended to the next succeeding business day, but it does not permit all weekends and holidays within the statutory time period to be excluded for purposes of computing the time period.