The following papers were read on defendant’s motion to dismiss the claim:
Notice of Motion, Affirmation in Support, and Exhibit; “Affidavit to
Oppose a Motion;” Reply Affirmation; “Affidavit to Oppose a
Claimant, an inmate in the custody of the Department of Correctional Services,
alleges that his property was lost or destroyed due to the “negligence and
intentional negligence by the State.”
Defendant moves to dismiss the claim, arguing that the Court lacks jurisdiction
on the basis that claimant neither served a notice of intention nor served and
filed a claim within one hundred twenty days of the exhaustion of his
administrative remedies as required by Court of Claims Act § 10 (9).
Claimant opposes the motion, arguing that his claim “encompasses
intertwined incidents” of “criminal or unlawful acts” that go
beyond his property claim (Claimant’s Affidavit to Oppose a Reply).
Claimant submitted an amendment and appeal on a Department of Correctional
Services Facility Claim on September 27, 2005, and on December 1 and December 2,
2005, the appeal was denied. A notice of intention was served on the Attorney
General’s Office on April 20, 2006, and a claim was served on the Attorney
General’s Office and filed with the Chief Clerk on April 20, 2006.
Regardless of whether the cause of action is for an inmate property claim,
governed by the one hundred twenty day time limitation found in Court of Claims
Act § 10 (9), or an intentional tort or negligence cause of action,
governed by the ninety day time limitation found in Court of Claims Act
§§ 10 (3), and 10 (3-b), both the notice of intention and the claim
are untimely, and therefore the Court lacks jurisdiction over the claim.
In accordance with the foregoing, defendant’s motion to dismiss the claim