New York State Court of Claims

New York State Court of Claims

FLAX v. STATE OF NEW YORK, #2006-018-524, Claim No. 110787, Motion No. M-71754


Defendant’s motion is granted, claim is DISMISSED based upon CCA § 10(9) and the fact the Claimant receives free dental care while incarcerated.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant’s attorney:
Defendant’s attorney:
Attorney General of the State of New York
By: G. Lawrence Dillon, Esquire Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
July 17, 2006

Official citation:

Appellate results:

See also (multicaptioned case)


The Defendant brings this motion to dismiss this bailment claim on the ground that

Claimant has not exhausted his personal property administrative remedies pursuant to Court of Claims Act § 10(9) and that Claimant will suffer no damages for the loss of his denture because the Department of Correctional Services provides all dental care to inmates for free.

Claimant filed a claim seeking damages for the destruction of claimant’s property, specifically a “particle tooth,” 75 cans of food, headphones and his clippers. He asserts that he was an inmate at Gouverneur Correctional Facility when he was directed to report to the sergeant’s office. He packed up all of his belongings and secured them in the gray locker. From the sergeant’s office he was escorted to the Special Housing Unit (SHU). He was transferred to Upstate Correctional Facility for his six-month confinement in SHU and it was during this time that he learned his “particle tooth” was missing. Claimant filed a lost property claim form for his tooth which was denied. After Claimant’s transfer to Bare Hill Correctional Facility, he noticed his 75 cans of food were missing, and his headphones and his clippers were broken. He asserts he filed a lost property claim for these items which claim was also denied. The documentation establishes that Inmate Claim Form, #840-0236-04, dated September 15, 2004, references his lost tooth. Claim Form No. 840-0236-04 was disapproved and the appeal was also disapproved. Claimant’s lost property Claim Form No. 560-0102-04, dated October 20, 2004, seeks damages for the 75 cans of food, “clipper Andis,” and headphones and indicates that he also lost his tooth. This claim was also denied but never appealed.

Court of Claims Act §10(9) requires 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.

The New York State Code of 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). As Defendant argues, since Claimant did not appeal the denial of his administrative claim for the 75 cans of food, headphones and clippers, he has failed to exhaust his administrative remedies for those items (see Brown v State of New York, Ct Cl, Midey, J., February 23, 2005, Claim No. 110036; Motion No. M-69459 [UID # 2005-009-010]). The failure to exhaust his administrative remedies deprives this Court of jurisdiction to hear his claim for these items. This portion of the claim must be DISMISSED.

Defendant further argues that the claim for the lost tooth must be dismissed because, as an inmate, Claimant is entitled to free dental care and will incur no damages for his lost artificial tooth; therefore, his claim is either moot or not ripe for determination. Defendant relies upon a decision from the Honorable Nicholas V. Midey, Jr., of this Court in Mathis v State of New York, Ct Cl, Midey, J., December 8, 2005, Claim No.102059 [UID# 2005-009-147]. In that case, Judge Midey denied Mr. Mathis’ claim for the loss of his dentures on the ground that the facility was going to provide his dental care. Judge Midey had evidence before him that the facility dentist recommended replacement of the dentures which were going to be provided at no cost to Mr. Mathis. In the instant matter, Defendant attaches an affidavit of Allen Dresher, D.D.S., Dental Director at Bare Hill Correctional Facility, indicating that the denture which was issued to Claimant in July 2001 will be replaced with a new appliance. Defendant has also supplemented its original submissions after Court inquiry with an additional affidavit from Muhammad Chaudrey, D.D.S., a dentist at Bare Hill Correctional Facility. Dr. Chaudrey’s affidavit indicates that a dental appliance for tooth #8 was provided to Claimant on June 27, 2006. There is also a signed acknowledgment from Claimant that he received dentures on that date.

Given the documentation submitted by Defendant for consideration, and Claimant’s default in responding to the motion, the Court finds Claimant’s claim for his lost tooth is now moot. The tooth has already been replaced. Accordingly, Claimant’s claim for his lost artificial tooth is also DISMISSED.

July 17, 2006
Syracuse, New York

Judge of the Court of Claims

The Court has considered the following documents in deciding this motion:

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

Affirmation of G. Lawrence Dillon Esquire, Assistant Attorney

General, in support, with exhibits attached thereto................2

Affidavit of Muhammad Chaudrey, D.D.S., with attachments..........3