New York State Court of Claims

New York State Court of Claims

BELLEZZA v. THE STATE OF NEW YORK, #2006-010-043, Claim No. 111634


Synopsis


Inmate claim for loss of personal property dismissed. Claimant failed to exhaust the two-tier system of administrative review.

Case Information

UID:
2006-010-043
Claimant(s):
FRANK BELLEZZA
Claimant short name:
BELLEZZA
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
111634
Motion number(s):

Cross-motion number(s):

Judge:
Terry Jane Ruderman
Claimant’s attorney:
FRANK BELLEZZAPro Se
Defendant’s attorney:
HON. ANDREW M. CUOMO
Attorney General for the State of New YorkBy: Elyse Angelico, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
January 24, 2007
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision
Claimant seeks damages for the loss of his personal property during his incarceration within the New York State Correctional system.
Claimant testified that on April 27, 2005, he was an inmate at Sing Sing Correctional Facility (Sing Sing) and was moved to the special housing unit. His belongings were packed by correction officers and placed in storage. The I-64 form listing claimant’s possessions was received into evidence (Ex. 1). On August 5, 2005, claimant was transferred to Upstate Correctional Facility (Upstate). On August 8, 2005, claimant’s property received at Upstate was inventoried and listed on another I-64 form (Ex. 2).
Claimant contends that when he left Sing Sing, he had nine bags of property. He understood that he was only allowed to bring four bags on the bus to Upstate. Therefore, claimant arranged to have the remaining five bags shipped to Upstate at his own expense. On August 11, 2005, when claimant did not receive the five additional bags, he filed an Inmate Claim Form regarding his missing bags. On August 12, 2005, the claim was rejected for claimant’s failure to establish value and proof of ownership (Ex. 3). There is no evidence that claimant filed an administrative appeal of this denial as evidenced by Part 4 of the Inmate Claim Form and the failure to file an appeal was consistent with claimant’s testimony (id.).
On August 21, 2005, claimant received a bag of property and was advised that it was the only shipment. On September 8, 2005, claimant filed an Inmate Grievance Complaint form for four lost bags. While this grievance was appealed and recovery was denied (Ex. 3), it is not a substitute for the mandated two-tier system of administrative review as required by 7 NYCRR 1700.3.
On November 16, 2005, claimant filed a claim in this court for $1,480. In response, defendant answered and raised as an affirmative defense claimant’s failure to exhaust his administrative remedies.
More than a year later, on December 19, 2006, claimant received another bag of property which he valued at $986.75. Claimant has now reduced his claim to $493.25 for the property contained in the missing three bags.
Court of Claims Act §10(9) provides:
“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.”

Claimant’s mandated administrative remedy is set forth in 7 NYCRR §1700.3. It provides for a two-tier system of administrative review for the loss of inmate property which consists of an initial review and an appeal. After the appeal, claimant may then pursue a claim in the Court of Claims.
Claimant’s failure to exhaust the two-tier system of administrative review requires dismissal of his claim.
Accordingly, defendant’s motion to dismiss is GRANTED and the claim is DISMISSED.
LET JUDGMENT BE ENTERED DISMISSING CLAIM NO. 111634.

January 24, 2007
White Plains, New York

HON. TERRY JANE RUDERMAN
Judge of the Court of Claims