New York State Court of Claims

New York State Court of Claims

MOORE v. STATE OF NEW YORK, #2006-018-549, Claim No. 112498, Motion No. M-72250


Synopsis


Without any opposition from Claimant, and with Defendant’s uncontroverted position that Claimant’s appeal of his administrative claim was untimely, the Court must grant the motion. The claims (both original and amended) are dismissed.

Case Information

UID:
2006-018-549
Claimant(s):
GEORGE MOORE
Claimant short name:
MOORE
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
112498
Motion number(s):
M-72250
Cross-motion number(s):

Judge:
DIANE L. FITZPATRICK
Claimant’s attorney:
GEORGE MOOREPro 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:
December 20, 2006
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Defendant brings this motion to dismiss the claim for failure to comply with Courtof Claims Act § 10(9). Claimant has submitted no opposition to the motion.

Claimant filed a claim on July 5, 2006, and an amended claim on July 19, 2006, seeking $200 for the damage, destruction, and theft of Claimant’s property on January 10, 2006. Specifically, Claimant alleges he lost an Eton AM/FM stereo cassette player, 2 family photographs, a burgundy pillow case, Coby HI-FI Dig headphones, a copy of the Criminal Procedure Law, § 440.10 motion to vacate judgment of conviction, and a copy of an inmate grievance previously filed against a Riverview Correction Officer. Claimant attaches an Inmate Claim Form (Facility Claim No. 570-0076-05), Riverview Correctional Facility, dated January 10, 2006, seeking $49.50, the form is stamped March 14, 2006, “Superintendent’s Office.” The result of Claimant’s administrative claim is not provided by Claimant.

Defendant asserts that Claimant filed his personal property claim in this Court prior to exhausting all of his administrative remedies as required by Court of Claims Act §10(9). Defendant submits the affidavit of Jason Poore, Principal Account Clerk at Riverview Correctional Facility. As the Principal Account Clerk, Mr. Poore serves as the Superintendent’s designee in the review and determination of inmate appeals to personal property claims. He states that he is familiar with the claim filed by Claimant dated January 10, 2006. The claim was received on January 11, 2006, as reflected in a memorandum to Claimant from Ms. Darcy Larock, Head Account Clerk at Riverview Correctional Facility. In the memorandum, Ms. Larock advises Claimant, “[i]n the event that your claim is denied, you should refer to Directive #2733, Inmate Personal Property claim, for directions on the appeal process” (see Exhibit B, Memorandum dated January 11, 2006, to Claimant from D. Larock). Claimant’s Inmate Claim was disapproved on January 31, 2006, by Ms. Larock. This is reflected on the Inmate Claim Form (see Defendant’s Exhibit B). Mr. Poore indicates that Claimant was notified that his claim was disapproved, although he provides no date. The first document in Exhibit B reflects that notice of the disapproval was sent to Claimant on January 31, 2006. Mr. Poore provides that he was assigned to review Claimant’s appeal, and issued a memorandum to Claimant dated March 14, 2006, advising that the appeal was untimely.[1] It is Defendant’s position that, as a result, Claimant did not exhaust his administrative remedies as required by Court of Claims Act § 10(9). 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 Codes, Rules and Regulations indicates that the Department of Correctional Services 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). Both steps must be completed before Claimant’s administrative remedies have been “exhausted” for purposes of bringing a claim in this Court (Battles v State of New York, Ct Cl, Decision and Order of Fitzpatrick, J., signed July 14, 2006, Claim No. 111341, Motion No. M-71756, UID # 2006-018-525; Christian v State of New York, Ct Cl, Decision and Order of Midey, J., signed May 11, 2001, Cl. No. 103806, Motion No. M-63207, UID # 2001-009-024; Richards v State of New York, Ct Cl, Decision and Order of Corbett, J., signed August 3, 2000, Cl. No. 102440, Motion No. M-61851, UID # 2000-005-526).

The administrative “Inmate Claim Form” (Facility Claim No. 570-0076-05), provided by Defendant reflects that the initial review of Claimant’s administrative claim was denied. There is no appeal determination reflected on the form.

Without any opposition from Claimant, and with Defendant’s uncontroverted position that Claimant’s appeal of his administrative claim was untimely, the Court must grant the motion. Claimant has failed to exhaust his administrative remedies, and therefore the claim that he filed with this Court on July 5, 2006, and the amended claim which was filed on July 19, 2006, must be dismissed in accordance with Court of Claims Act § 10(9). Defendant’s motion is GRANTED and the claim is DISMISSED.




December 20, 2006
Syracuse, New York

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


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


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


Affirmation of Joel L. Marmelstein, Esquire, Assistant Attorney General,

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


No papers in opposition were received from Claimant.


[1]. Mr. Poore in paragraph 4 of his affidavit states, “[a]s is more fully set forth in my memorandum of March 14, 2006 to Inmate Moore, I denied the appeal on the ground that it was untimely.” No copy of Mr. Poore’s memorandum is provided.