New York State Court of Claims

New York State Court of Claims

MENDEZ v. THE STATE OF NEW YORK, #2006-016-037, Claim No. 111930, Motion No. M-71392


Synopsis


Inmate property loss claim was dismissed as claimant had failed to exhaust his administrative remedies.

Case Information

UID:
2006-016-037
Claimant(s):
ROBERTO MENDEZ
Claimant short name:
MENDEZ
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
111930
Motion number(s):
M-71392
Cross-motion number(s):

Judge:
Alan C. Marin
Claimant’s attorney:
Roberto Mendez, Pro se
Defendant’s attorney:
Eliot Spitzer, Attorney GeneralBy: Jeane L. Strickland Smith, Esq., AAG
Third-party defendant’s attorney:

Signature date:
May 26, 2006
City:
New York
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Defendant moves to dismiss the claim of Roberto Mendez, in which Mr. Mendez alleges that his wristwatch was damaged at Otisville Correctional Facility. Section 10.9 of the Court of Claims Act provides that:
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.


With regard to the administrative remedy, “the Department of Correctional Services has established a two-tier system for handling personal property claims consisting of an initial review and an appeal. (7 NYCRR 1700.3). Both of these separate and distinct steps must be completed at the time a claim is filed and served in order for a claimant to be deemed to have exhausted his administrative remedies . . .” Tafari v State of New York, Ct Cl, December 9, 2002 (unreported, claim no. 106576, motion no. M-65889, Lebous, J., UID #2002-019-591[1]). Where claimant fails to appeal the denial of an initial review, he has failed to exhaust his administrative remedies, a requirement to commencing an action in the Court of Claims, and his claim in this Court is thus subject to dismissal. See, e.g., Barrientos v State of New York, Ct Cl, June 30, 2003 (unreported, claim no. 106715, motion no. M-66036, Patti, J., UID #2003-013-013).

In this case, Mendez completed the first step of the administrative claim process, and such claim was disapproved by the correctional facility on August 29, 2005. Pursuant to 7 NYCRR 1700.4(d), claimant’s time to file an appeal of such determination was “five working days after initial disapproval of the claim. Failure to file within this time frame will result in the case being closed.” However, rather than file an appeal within such time frame, Mr. Mendez filed a grievance, arguing that he should have been provided an interpreter at an interview held in connection with the claim. In response to the grievance, he was “re-interviewed” with an interpreter on October 5, 2005.

Mr. Mendez argues that he did not receive a decision on such “rehearing” of his claim until December 30, 2005. See ¶4 of claimant’s “Reply To [Defendant’s] Affirmation in Opposition to Claimant’s Cross Motion.” However, it should be noted that claimant filed his appeal on December 29, 2005, before he received such memorandum. In addition, Mendez does not dispute that he exchanged various pieces of correspondence with the facility in November and December of 2005, including a November 22, 2005 memorandum to claimant which states that “[i]f you are not satisfied with my decision, follow the appeal process stated on your claim form.” See exhibit C to defendant’s “Affirmation in Opposition to Claimant’s Cross Motion.”[2] Thus, even if November 22, 2005, rather than August 29, 2005 could be construed as the initial disapproval of the claim, Mendez failed to appeal within five working days of such date. In fact, in a December 29, 2005 memorandum that claimant wrote to the Superintendent, he acknowledged that he was “appealing [his] claim . . . late . . . because [he] was still trying to resolve the matter at its primary stages through DSA J. Squillace and the grievance mechanism.” See id., exhibit D. In short, I am constrained to find that claimant failed to timely appeal the disapproval of his institutional claim, and he thus failed to exhaust his administrative remedies for the purposes of §10.9 of the Court of Claims Act.

Accordingly, having reviewed the submissions[3], IT IS ORDERED that motion no. M-71392 be granted and that claim no. 111930 be dismissed.

May 26, 2006
New York, New York

HON. ALAN C. MARIN
Judge of the Court of Claims




  1. [1]This and other decisions of the Court of Claims may be found on the Court’s website: www.nyscourtofclaims.state.ny.us.
  2. [2]Claimant, who replied to defendant’s papers, does not dispute that he received such memorandum.
  3. [3]The following were reviewed: defendant’s notice of motion with affirmation in support and exhibits A and B; claimant’s “Notice of Cross Motion” with affidavit in support (which was treated as an opposition to defendant’s motion); defendant’s “Affirmation in Opposition to Claimant’s Cross Motion” with exhibits A through D; and claimant’s “Reply to [Defendant’s] Affirmation In Opposition to Claimant’s Cross Motion.”