Defendant’s Response to Cross-Motion (CM-72091) 5
As set forth in his claim (attached as Exhibit C to Items 1,2), claimant seeks
damages in the amount of $250.00, alleging that employees of the Department of
Correctional Services lost his watch when he was transferred to the Special
Housing Unit (SHU) at Oneida Correctional Facility on or about September 18,
2005. Claimant has therefore asserted a claim sounding in bailment.
Inmate bailment claims are governed by Court of Claims Act § 10(9), which
provides that any claim alleging the loss of personal property by an inmate may
not be filed “unless and until the inmate has exhausted the personal
property claims administrative remedy”. The statute further requires that
any such claim “must be filed and served within one hundred twenty days
after the date on which the inmate has exhausted such remedy.”
In this particular matter, defendant has attached a copy of claimant’s
“Inmate Claim Form” (see Exhibit E to Items 1,2) which contains a
notation that the review of claimant’s administrative claim was made on
November 29, 2005. Following this determination, claimant served a
“notice of intention to file a claim” upon the Attorney General on
December 9, 2005, by certified mail, return receipt requested (see Exhibits A
and B to Items 1,2). Subsequently, claimant then served his claim upon the
Attorney General on May 19, 2006, by certified mail, return receipt requested
(see Exhibits C and D to Items 1,2). There is no record, however, that this
claim was (or has been) filed with the Clerk of the Court of Claims as required
by § 10(9).
The service and filing requirements of the Court of Claims Act are
jurisdictional prerequisites to the institution and maintenance of a claim
against the State, and as such must be strictly construed (Finnerty v New
York State Thruway Auth., 75 NY2d 721; Byrne v State of New York, 104
AD2d 872, lv denied 64 NY2d 607). In this matter, defendant has
established to the satisfaction of this Court that claimant failed to comply
with the explicit provisions of § 10(9) in that his claim was served more
than 120 days after the exhaustion of his administrative remedy. However, since
claimant never filed his claim with the Clerk of the Court of Claims, there is
no actual claim to be dismissed on jurisdictional grounds. In any event, even
though defendant’s motion may be therefore viewed as an academic exercise,
the served (but not filed) claim is jurisdictionally defective.
Furthermore, since claimant failed to serve and file a claim within 120 days
after he had exhausted his administrative remedies, the Court may not entertain
an application for late claim relief pursuant to § 10(6) of the Court of
Claims Act (see Roberts v State of New York, 11 AD3d 1000).
In response to the motion to dismiss, however, claimant has requested that the
Court treat his previously and timely served notice of intention as a claim
pursuant to Court of Claims Act § 10(8)(a). Pursuant to this section,
a Court may grant such relief, if it is made by motion before an action
asserting a like claim against a citizen of the State would be barred under the
provisions of article two of the CPLR, the notice of intention was timely served
and contains facts sufficient to constitute a claim, and the granting of the
application would not prejudice the defendant.
Even though claimant has demonstrated that his notice of intention was timely
and properly served on the defendant, § 10(9) of the Court of Claims Act,
governing inmate bailment claims, does not make any provision authorizing the
serving of a notice of intention (cf.
Court of Claims Act
§ 10[3-b]). Accordingly, claimant’s previously served notice of
intention is of no legal consequence (Cepeda v State of New York
, Ct Cl,
October 22, 2001, Midey, Jr., J., Claim No. 104717, Motion No. M-64015 [UID No.
2001-009-049]), and therefore may not serve as a basis for relief under
§ 10(8) (Gloster v State of New York
, Ct Cl, June 5, 2002,
McNamara, J., Claim No. 103662, Motion No. M- 64877 [UID No. 2002-011-550];
Pristell v State of New York
, Ct Cl, July 15, 2005, Lebous, J., Claim No.
None, Motion No. M-70283 [UID No.
Accordingly, for the reasons stated herein, it is
ORDERED, that Motion No. M-72090, to the extent that it seeks to dismiss a
served (but not filed) claim is GRANTED; and it is further
ORDERED, that Cross-Motion No. CM-72091, seeking an order deeming the timely
served notice of intention alleging a bailment cause of action as a claim
pursuant to Court of Claims Act § 10(8), is hereby DENIED.