New York State Court of Claims

New York State Court of Claims
WILLIAMS v. THE STATE OF NEW YORK, #2005-030-950, Claim No. 110146, Motion No. M-70487

REVERSED 2d Dept 3/13/07 38 AD3d 646
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:
Michael Williams, pro se
Defendant’s attorney:
Eliot Spitzer, Attorney GeneralBy: Janet L. Polstein, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
December 29, 2005
White Plains

Official citation:

Appellate results:
REVERSED 2d Dept 3/13/07 38 AD3d 646
See also (multicaptioned case)

Claimant seeks damages of $5,350.00 for the loss of a wedding ring and $350.00 for the loss of a watch, both allegedly occurring while he was an inmate at the Arthur Kill Correctional Facility in 2004.
In a motion made returnable at the previously-scheduled trial, defendant moved for permission to amend its answer to add the following affirmative defense: “The claimant has failed to exhaust his administrative remedies and therefore the claim is barred in this Court.” The answer, filed on January 12, 2005, contained no mention of the alleged failure to exhaust administrative remedies, instead containing four affirmative defenses: contributory culpable conduct on the part of the claimant; privilege resulting from the making of discretionary determinations; privilege arising from the performance of duties mandated by statute; and alleged failure of the claim to comply with Court of Claims Act §11(b) by failing to include any “particularization” of defendant’s “conduct as regards the accident.”
The first three affirmative defenses contained in the answer all relate to the merits of the claim and the proof at trial. The fourth affirmative defense – that the court lacked jurisdiction for failure of the claim to comply with §11(b) – was apparently abandoned by the defendant as it never moved for dismissal, proceeded to trial, and indeed never mentioned the issue again. In any event, the court finds that there is no merit to the fourth affirmative defense as the claim contained a more than adequate “particularization” of all of the information required by §11(b) (see Heisler v State of New York, 78 AD2d 767; see also Lepkowski v State of New York, 1 NY3d 201; Rodriguez v State of New York, 8 AD3d 647; Wharton v City Univ. of N.Y., 287 AD2d 559).
The court reserved decision on defendant’s motion to amend the answer, and the claim proceeded to trial.
Claimant testified that when he was initially incarcerated at Downstate Correctional Facility, three items of personal property were taken from him: a ring, a watch and a chain with a medallion. He was then transferred to Arthur Kill Correctional Facility where he served his sentence. In August 2004, approximately three months prior to his scheduled release from Arthur Kill, he requested that his property be sent home. He received a letter from someone in the inmate records office at Arthur Kill (the first name is illegible but the last name is Mitchell) dated August 4, 2004 stating “I do not have a ring in your personal property nor is there a ring listed on your personal property card (Exhibit “B” to claim).”
Claimant stated that on August 9, 2004, he submitted an inmate claim pursuant to directive 2733 (Exhibit “C” to claim; also defendant’s Exhibit “A”) but never received a response. He testified that when he did not get a response to his claim, he filed a grievance on October 13, 2004. The grievance stated that he had submitted a lost property claim for a wedding ring, that over 30 business days had elapsed without a response, and that he needed a response because he was scheduled to be released and might need to pursue a claim in the Court of Claims. His grievance was denied on October 21, 2004 as being beyond the scope of the grievance committee (id.). Upon his release from custody on November 2, 2004, he filed the instant claim because he felt that there was no other action he could have taken within the facility that would have given him a response while he was still there.
Claimant testified that the watch that he surrendered upon admission to Downstate was returned to him at Arthur Kill and he was issued a permit, dated December 12, 2000, allowing him to possess one yellow face engraved watch (Exhibit “G” to claim). On September 14, 2004, the watch was taken from him (see Exhibit “F” to claim, Contraband Receipt listing a watch with the comment “no permit”). The Contraband Receipt also indicates that four other items were taken from claimant: Sony headphones (with the comment “no permit over limit”), one blank cassette tape (with the comment “not allowed”), ten magazines (with the comment “over limit”) and four permits (with the comment “verify”).
A disciplinary hearing was held subsequent to the confiscation of the items. The hearing officer found that two of the permits appeared to be forged and that claimant admitted to receiving the items listed on the two forged permits – two headphones, one cassette player, one fan and one lamp – and determined that those items should be destroyed (Defendant’s Exhibit “C,” p. 3, Superintendent Hearing Disposition dated September 21, 2004). The records of the disciplinary proceeding contain no mention of the watch (id.) and claimant stated that he was told by a sergeant that the watch would be returned to him when he was released. When claimant was released from custody, the watch was not returned.
Claimant testified that he did not have receipts for the purchase of the ring or the watch because they were lost when he was incarcerated.
On cross-examination, claimant indicated that the subject incarceration was his third in the State system and that he was familiar with the regulations and procedures governing lost property claims, although the claim that he submitted for the ring was the first time he had occasion to utilize such procedures. With respect to this claim, defense counsel referred claimant to Defendant’s Exhibit “B,” a chronological log of property claims filed at Arthur Kill from April 2, 2004 through March 29, 2005. Claimant agreed that the log contained no indication of any claim filed by him during that period and also that his copy of the claim form contained no indication that it had been filed. Claimant agreed with defense counsel that he understood that the facility was supposed to respond to property claims within 15 days, but when asked if he followed up on his claim after not receiving a response within such time, he stated that he responded to that situation by filing the grievance.
As noted, the court reserved decision on defendant’s motion to amend its answer to include the defense that the claimant did not exhaust his administrative remedies and that the claim is thus “barred” in this court, as well as on defendant’s motion to dismiss the claim on such grounds. Court of Claims Act §10(9) provides 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.
Here, at issue are two separate alleged property losses, each of which must be addressed separately.
With respect to the alleged loss of the wedding ring, although claimant testified that he filed an institutional claim, and produced a copy of a completed claim form, there was no proof that such claim was ever filed with the facility and indeed the facility’s records indicate that the claim was not filed. When compliance with §10(9) is challenged by the defendant, it is claimant’s burden to establish such compliance, and on the record at this trial the court could not find that such has been established. Nevertheless, defendant ignores the relevance of Court of Claims Act §11(c), providing that:
“[a]ny objection or defense based upon failure to comply with . . . the time limitations contained in section ten of this act . . . is waived unless raised, with particularity, either by a motion to dismiss made before service of the responsive pleading is required or in the responsive pleading, and if so waived the court shall not dismiss the claim for such failure.”
Here, defendant did not seek permission to raise its defense, based on §10(9), until six months after it interposed its answer. There is no question that defendant did not comply with the requirements of §11(c) in failing to raise the defense in its answer or in a pre-answer motion. Defendant did not address §11(c) either in its motion papers or in its oral argument of the motion at trial.
In Roberts v State of New York (11 AD3d 1000), the Appellate Division, Third Department held that the late filing remedy of Court of Claims Act §10(6) was not available in a claim covered by §10(9) because §10(6) only applies to a claimant who has failed to timely interpose a claim “as provided in the foregoing subdivisions [of § 10] and that “it has been repeatedly held that the requirements of the Court of Claims Act as to the filing of claims must be strictly construed because the question of timeliness of filing is jurisdictional” (id.). See also Lopez v State of New York (Ct Cl, Lebous, J., decision and order dated March 28, 2005, UID No. 2005-019-522).
The interpretation of §11(c) has also been to strictly construe its requirements. See e.g., Sinacore v State of New York (176 Misc 2d 1) addressing the “particularity” requirement of the statute and Knight v State of New York (177 Misc 2d 181):
“subdivision (c) of section 11 specifically provides that once a defense based upon a failure to comply with the requirements of section 10 or 11 is waived, ‘the court shall not dismiss the claim for such failure’. To permit an already waived time limitation or manner of service defense to be interposed through the device of an amended answer would not only be contrary to the underlying purpose of section 11 (c) but would be of no practical effect given the express language prohibiting dismissal of the claim once the defenses are waived (see, Nasuf Constr. Corp. v State of New York, 185 AD2d 305). As a result, this court holds that a defense once waived pursuant to Court of Claims Act § 11(c) may not later be asserted in an amended pleading” (id. at 184).
This court is of the opinion that the same principle of strict construction that mandated the results in Roberts, Sinacore, and Knight compels the conclusion that the defense that defendant seeks to interpose, since it is a defense based on one of the “time limitations of section ten” (i.e., §10[9]), cannot be asserted by way of an amendment to the answer once defendant has waived the defense pursuant to the terms of §11(c).
Thus, the court denies the defendant’s motion as it relates to the claim for the lost wedding ring.
The claim for the lost watch did not accrue until claimant’s release from Arthur Kill. Again, based on a strict construction of §10[9] – applicable to “[a] claim of any inmate in the custody of the department of correctional services” – the statute is not applicable to the claim for damages for loss of the watch. There was no time at which claimant was an inmate in the State system when he could have filed an administrative claim simply because when the claim accrued, upon his release from custody, he was no longer an inmate. Claimant’s argument that he felt that the administrative property claim procedure did not apply to him at that point because he had been released and was not an inmate was cogent and persuasive. Defendant did not respond to claimant’s contentions in this regard. Moreover, defendant did not address whether it is even possible for a released inmate to submit a lost property claim subsequent to his release. The relevant regulations (7 NYCRR Part 1700) do not seem to contemplate such a scenario. And, in any event, the court’s finding of waiver of the defense would apply even if the defense were viable. For such reasons, the defendant’s motion is denied in all respects.
Turning to the merits, the proof established that when claimant came into State custody, he was issued a receipt for one “yellow metal ring w/ 6 white stones” and one “image watch w/ leather band” (Exhibit”A” to claim). The proof further established that the ring was never returned to claimant and the watch, although it was returned to him, was confiscated on September 14, 2004, along with items that he was not authorized to possess and forged permits for such items.
With respect to the loss of the watch, the court finds that claimant’s culpable conduct in possessing contraband items and forged permits contributed to the loss, notwithstanding that he had a legitimate permit for possession of the watch. Had this culpable conduct not occurred, it is likely that the watch would never had been confiscated. Nevertheless, neither defendant’s possession of claimant’s watch and ring nor the fact that they were not returned to him is in dispute, and under such circumstances defendant must also be held responsible (see 7 NYCRR §1700.7[b]).
The court finds the defendant fully liable for the loss of the ring, and the defendant and the claimant equally liable for the loss of the watch.
The proof on damages was extremely limited, basically consisting of claimant’s statements in the verified claim that the ring cost $5,350.00 when new and that the watch cost $350.00 and was seven years old at the time of the loss. The bill of particulars alleges that the ring was purchased in January 1998 and that the watch was purchased in July 1999. The court finds that the sum of $500.00 constitutes fair recompense for the ring and that the sum of $50.00 (which must be reduced by 50% to account for claimant’s contributory fault) constitutes fair recompense for the loss of the watch.
The clerk of the court is directed to enter judgment in the sum of $500.00, for the loss of the ring, with appropriate interest from August 4, 2004, and in the sum of $25.00 for the loss of the watch, with appropriate interest from November 2, 2004, the date of claimant’s release. Claimant may recover any filing fee actually paid (see Court of Claims Act §11-a[2]) pursuant to the applicable procedure.

December 29, 2005
White Plains, New York

Judge of the Court of Claims