New York State Court of Claims

New York State Court of Claims

DIAZ v. THE STATE OF NEW YORK, #2005-019-589, Claim No. 111503, Motion No. M-70947


Synopsis


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

Case Information

UID:
2005-019-589
Claimant(s):
RAUL DIAZ The court has sua sponte amended the caption to reflect the State of New York as the only proper defendant.
Claimant short name:
DIAZ
Footnote (claimant name) :

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

Third-party defendant(s):

Claim number(s):
111503
Motion number(s):
M-70947
Cross-motion number(s):

Judge:
FERRIS D. LEBOUS
Claimant's attorney:
RAUL DIAZ, PRO SE
Defendant's attorney:
HON. ELIOT SPITZER, ATTORNEY GENERALBY: Carol A. Cocchiola, Assistant Attorney General, of counsel
Third-party defendant's attorney:

Signature date:
December 12, 2005
City:
Binghamton
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

In lieu of an answer, the defendant State of New York (hereinafter "State") moves to dismiss this claim for lack of jurisdiction pursuant to Court of Claims Act (hereinafter "CCA") 10 (9). Claimant, an inmate appearing pro se, opposes the motion.[1]

Claimant alleges that his personal address book was lost during his transfer into the special housing unit at Elmira Correctional Facility on or about April 19, 2005. Claimant filed an inmate grievance complaint dated May 1, 2005 pursuant to the Inmate Grievance Program (7 NYCRR Part 701), rather than an Inmate Personal Property Claim (7 NYCRR Part 1700). After various transfers to other correctional facilities claimant once again complained of his missing address book. This claim was then filed with the Clerk of the Court on October 14, 2005 and served on the Attorney General's office by certified mail, return receipt requested, on that same date.


The State's motion to dismiss will be granted. This bailment claim is governed by CCA 10 (9) which 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 Department of Correctional Services has established a two-tier system for handling personal property claims consisting of an initial review and an appeal. (7 NYCRR 1700.3). It was claimant's burden of establishing the exhaustion of said two step process with respect to this claim. Claimant attached to his claim the grievance he filed under 7 NYCRR Part 701, but inmate personal property claims are processed under regulations found in 7 NYCRR Part 1700 rather than the inmate grievance procedure contained in 7 NYCRR Part 701. Additionally, the court finds claimant's arguments regarding advice he received from the prison law library clerk and objections to the assistant attorney general's manner of referring to the State as the defendant rather than the correction officers individually by name to be without merit.[2] As such, there is nothing in this record from which this court could conclude that claimant pursued, let alone exhausted, the administrative remedies available to him pursuant to 7 NYCRR Part 1700. Consequently, the court finds claimant has not demonstrated that he exhausted the available administrative remedies pursuant to CCA 10 (9) and, as such, may not pursue his claim in this venue.


Accordingly, due to claimant's failure to comply with CCA 10 (9), it is ORDERED that the State's motion to dismiss, Motion No. M-70947 is GRANTED and Claim No. 111503 is DISMISSED.




December 12, 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 14, 2005.
  2. Notice of Motion No. M-70947, dated November 14, 2005, filed November 16, 2005.
  3. Affirmation of Carol A. Cocchiola, AAG, in support of motion, dated November 14, 2005 with attached exhibits.
  4. Undated "Notice of Motion" of Claimant in opposition to motion.
  5. Claimant's letter dated November 27, 2005.


[1]The court deemed claimant's undated "Notice of Motion" and letter dated November 27, 2005 as claimant's papers in opposition to the State's motion to dismiss.
[2]In fact, the State of New York is the only proper defendant in the Court of Claims, rather than the individual employees.