New York State Court of Claims

New York State Court of Claims

NORMAN v. STATE OF NEW YORK, #2006-018-518, Claim No. NONE, Motion Nos. M-71468, CM-71691


Synopsis

Permission for late claim denied, administrative remedies not exhausted.

Case Information

UID:
2006-018-518
Claimant(s):
JAHAN NORMAN
Claimant short name:
NORMAN
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
NONE
Motion number(s):
M-71468
Cross-motion number(s):
CM-71691
Judge:
DIANE L. FITZPATRICK
Claimant’s attorney:
Norman JahanPro Se
Defendant’s attorney:
ELIOT SPITZER
Attorney General of the State of New York
By: Joel L. Marmelstein, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
June 8, 2006
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Movant brings a motion for permission to file a late claim pursuant to Court of Claims

Act § 10(6). Defendant has filed a cross-motion (Motion No. CM-71691, filed April 26, 2006) seeking an order permitting Defendant to interpose an affirmation in opposition to this motion.

Movant, an inmate, asserts in the proposed claim that on March 7, 2006,[1] he was scheduled to be transferred from Gouverneur Correctional Facility to Elmira Correctional Facility. The Department of Correctional Services (DOCS) only permits four bags of personal property to be transferred with the inmate, any other bags are shipped via a shipping carrier. Movant was advised that he had more than the number of bags permitted to be transferred so three of his bags would be shipped. Movant refers to an I-64 Form indicating bags numbered 878273, 878274, 878275, 0884511 were transferred by DOCS (Exhibit A). According to Movant, Exhibit B reflects that bags, numbered 878223, 878222, were shipped by a shipping carrier. Movant alleges that only two bags were shipped instead of three; one bag is missing from the I-64 form in Exhibit B. Movant filed an administrative claim for this lost bag and was advised that the bag was with UPS not DOCS. Movant contacted UPS and was told that he would need a UPS tracking form, which he tried to obtain from DOCS without success. Movant has attached copies of the I-64 Forms and the administrative claim to his proposed claim. Movant seeks compensation for his lost property.

The motion for permission to file this proposed claim must be denied. Late claim relief is not available for lost property claims (Roberts v State of New York, 11 AD3d 1000). In Roberts v State of New York, the Appellate Division of the Fourth Department, found it was error to grant claimant’s motion to file a late claim for his loss of personal property while an inmate in a State correctional facility because of the legislature’s placement of Court of Claims Act

§ 10(9), which provides that an inmate must file and serve a claim for loss of personal property within 120 days after exhausting the administrative remedies established by the Department of Correctional Services, after Court of Claims Act § 10(6), permitting late claim relief where a notice of intention was not served or claim was not served and filed in accordance with the “foregoing subdivisions.” Since Court of Claims Act § 10(9) is not one of the “foregoing subdivisions” late claim relief is not available for lost property claims. Although this claim accrued in the Third Judicial Department, the Appellate Division of that Department has not ruled on the issue. As a result, the Court is bound by the finding in Roberts v State of New York (see also Blanche v State of New York, 17 AD3d 1069).

However, even if the Court were to consider the merits of the late claim motion, its decision would still be the same. Court of Claims Act § 10(9) requires that before any inmate claim for loss of personal property can be served and filed with the Clerk of the Court, the personal property administrative remedies provided by the Department of Correctional Services must be exhausted. The New York State Codes, Rules and Regulations indicates that DOCS has established a two-tier system of administrative review for the loss of inmates’ personal property which consists of an initial review and an appeal (7 NYCRR §1700.3). Movant has a copy of his administrative claim as Exhibit C. This claim form reflects that an initial review was made, however, no appeal was ever taken. The second level of administrative review was never utilized, and therefore, Movant has failed to exhaust his administrative remedies as required by the statute.

Movant’s motion is denied. Defendant’s cross-motion is also denied.


June 8, 2006
Syracuse, New York

HON. DIANE L. FITZPATRICK
Judge of the Court of Claims


The Court has considered the following documents in deciding these motions:


Notice of Motion.......................................................................................1


Affidavit of Jahan Norman sworn to March 21, 2006 with exhibits

attached thereto..............................................................................2


Notice of Cross-Motion..............................................................................3


Affirmation of Joel L. Marmelstein, Esquire, Assistant Attorney

General, in support, with exhibit attached thereto..........................4


[1]. The exhibits attached to Movant’s proposed claim reflect the date as March 7, 2005.