New York State Court of Claims

New York State Court of Claims

GEORGE v. THE STATE OF NEW YORK, #2006-015-104, Claim No. 111857, Motion No. M-71389


Synopsis


Court of Claims Act § 10 (9) contains no provision regarding use of a notice of intention to file a claim in order to obtain additional time for service and filing of the claim. This inmate personal property claim served more than 120 days after examination of claimant's adminsitrative remedy is dismissed as untimely.

Case Information

UID:
2006-015-104
Claimant(s):
STEPHON GEORGE
Claimant short name:
GEORGE
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
111857
Motion number(s):
M-71389
Cross-motion number(s):

Judge:
FRANCIS T. COLLINS
Claimant’s attorney:
Stephon George, Pro Se
Defendant’s attorney:
Honorable Eliot Spitzer, Attorney General
By: Kathleen M. Arnold, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
July 14, 2006
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Defendant's motion to dismiss the claim for lack of jurisdiction due to claimant's failure to serve this inmate property loss claim within 120 days of the exhaustion of his administrative remedy is granted. The claim filed January 18, 2006 seeks to recover damages for the loss of certain of the claimant's personal property incident to a transfer from Great Meadow Correctional Facility (Great Meadow) to Southport Correctional Facility (Southport). Specifically, claimant alleges that three bags of property were packed for shipment at Great Meadow but only two bags were delivered to Southport. Claimant became aware of the loss on April 23, 2005 and filed an administrative claim (inmate claim #630-057/05) seeking compensation in the amount of $223.95 (see defendant's Exhibit B) on May 10, 2005. Upon initial administrative review (see 7 NYCRR § 1700.3 [a]) the claim was approved for the reduced amount of $22.00 on August 3, 2005. Claimant appealed that determination to the facility's superintendent who on August 19, 2005 approved payment of the same reduced amount thereby exhausting claimant's administrative remedy and triggering the 120-day time period to serve and file a claim in this court pursuant to Court of Claims Act § 10 (9).

Claimant served a notice of intention upon the Attorney General on November 10, 2005 and served the instant claim on January 20, 2006. Defendant now moves to dismiss the claim as untimely in that service of the claim occurred outside the statutory 120-day period. Defendant further alleges that inmate personal property claims are not subject to the extension of time afforded other claims through the service of a notice of intention (see Court of Claims Act § § 10 [2], [3], [3-a], [3-b], [4]).

Claimant opposed the motion but in doing so acknowledged that the facts related on the motion by the Assistant Attorney General are correct. Claimant avers that his claim was untimely served due to legal advice received from non-lawyers at Southport's law library. Without benefit of a notice of cross-motion and without addressing the prescribed statutory factors set forth in Court of Claims Act § 10 (6) claimant requests permission to serve a late claim.

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.

As is clear from the language of the statute, "[u]nlike Court of Claims Act § 10 (3) which governs claims for loss of personal property by all others, no provision is made in section 10 (9) for serving a notice of intention and thereby extending the time within which the claim must be filed and served" (Gloster v State of New York, 2004 WL 2973968). Since it is conceded by the claimant that his appeal was finally decided and his administrative remedy exhausted on August 19, 2005 the claim filed on January 18, 2006 and received by the Attorney General on January 20, 2006 was untimely. As a result dismissal is required since "[i]t 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" (Matter of Welch v State of New York, 71 AD2d 494, 498, lv denied 50 NY2d 802).

Even had the claimant properly moved for late claim relief the application would have been denied since it is now settled that the Court of Claims "lacks the discretionary authority under section 10 (6) to grant permission to file a late claim for claims arising under section 10 (9) (see Roberts v State of New York, 11 AD3d 1000 [2004])" (Blanche v State of New York, 17 AD3d 1069, 1071).

Accordingly, defendant's motion is granted and the claim is dismissed.


July 14, 2006
Saratoga Springs, New York

HON. FRANCIS T. COLLINS
Judge of the Court of Claims


The Court considered the following papers:
  1. Notice of motion dated February 27, 2006;
  2. Affirmation of Kathleen M. Arnold dated February 27, 2006 with exhibits;
  3. Reply of Stephon George sworn to March 30, 2006.