New York State Court of Claims

New York State Court of Claims

AMAKER v. THE STATE OF NEW YORK, #2006-041-010, Claim No. 112521, Motion No. M-72160


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:
Anthony AmakerPro Se
Defendant’s attorney:
Hon. Eliot Spitzer, New York State Attorney GeneralBy: Kathleen M. Arnold, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
November 27, 2006

Official citation:

Appellate results:

See also (multicaptioned case)


The defendant moves to dismiss the claim based upon the claimant's failure to exhaust his administrative remedies as required by Court of Claims Act § 10 (9).

The claim alleges that the defendant was responsible for the loss of personal propertyowned by claimant, an inmate housed at Clinton Correctional Facility. On April 17, 2006 the claimant was advised by the defendant that a package had been left for him at the facility by his sister. Claimant alleges that the defendant failed to deliver the package to him. Claimant further alleges that on May 12, 2006, he submitted a letter and claim to the facility superintendent complaining about the undelivered package. In the letter, claimant requested that the superintendent "submit this claim to the Institutional Steward for investigation".

On May 17, 2006, the facility superintendent advised claimant that he had forwarded the letter and claim to "T. Meskunas, Steward, for review and appropriate action."

Claimant asserts that he heard nothing further from the facility regarding his lost property claim and therefore "[o]n June 5, 2006 the claimant initiated this claim in the Court of Claims." The claim was filed and served on July 10, 2006.

Defendant responded with the instant motion to dismiss, alleging claimant failed to exhaust his administrative remedies. Defendant offers the affidavit of Joy F. Barcomb, the Head Account Clerk "working in the Steward’s Office at Clinton Correctional Facility." Barcomb swears that claimant "has not filed an Inmate Personal Property Claim . . . in 2006."
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."

Claimant's mandated administrative remedy is set forth at 7 NYCRR Part 1700, and entitled "Inmate Personal Property Claims." Upon the filing of a claim, 7 NYCRR 1700.3 provides that a facility reviewer will make an initial decision to approve or deny the claim and that an appeal of the initial decision may be made to either the facility superintendent or to the Department of Correctional Services Central Office for review, depending upon the alleged value of the lost property. 7 NYCRR 1700.3 (b)(4) advises that "[n]o further administrative review is available after appeal. The remaining option is for the inmate to pursue the claim in the Court of Claims."

7 NYCRR 1700.4(a) requires that "[a]n inmate must file an 'inmate claim form' (form 1421) within five days after discovery of the loss with the deputy superintendent for administration or his designee." The regulations further provide that an initial review shall be completed within 15 working days of receipt of the claim and that a decision on the claim should be issued within three months (7 NYCRR 1700.4 [b] and [c]). An inmate is required to file an appeal within five working days of denial of a claim and the appeal must be reviewed within 15 working days of receipt by the reviewer (7 NYCRR 1700.4 [d]).

The claim must be dismissed. Although defendant offers no reply to the evidence submitted by claimant demonstrating that a lost property claim was in fact apparently submitted by claimant to the facility superintendent, contrary to the information contained in the affidavit of Barcomb, and that the claim was forwarded by the superintendent to the facility steward "for review and appropriate action," the fact nevertheless remains that the claimant's administrative remedies have not been exhausted as required by Court of Claims Act § 10 (9). By claimant's own admission there has been no decision issued with respect to the property claim he submitted to the superintendent on May 12, 2006.

After submitting his property claim to the superintendent and receiving an acknowledgment that the claim would be forwarded to the steward, claimant took no further action to ascertain the status of his administrative claim prior to filing and serving his claim in this court less than sixty days after submission of the lost property claim.

It has been held that "claims arising under Court of Claims Act § 10 (9) are akin to CPLR article 78 proceedings" (Blanche v State of New York, 17 AD3d 1069, 1071 [4th Dept 2005]). Case law under Article 78 demonstrates that "[a] petitioner must exhaust all administrative remedies before seeking judicial review unless he or she is challenging an agency's action as unconstitutional or beyond its grant of power, or if resort to the available administrative remedies would be futile or would cause the petitioner irreparable harm" (Abdullah v Girdich, 297 AD2d 844, 845 [3d Dept 2002]; see Georgiou v Daniel, 21 AD3d 1230 [3d Dept 2005]).

Claimant does not satisfy any of the exceptions to the exhaustion doctrine.

Claimant's failure to exhaust the "two-tier system for handling bailment claims consisting of an initial review and an appeal" (Perkins v the State of New York, [Ct Cl, Hard, J., #2006-032-077][1]) provided by 7 NYCRR 1700.3 requires dismissal of the claim pursuant to Court of Claims Act § 10 (9).

The Court finds that claimant failed to exhaust his administrative remedies prior to filing and serving the claim. The defendant's motion to dismiss the claim is granted.

November 27, 2006
Albany, New York

Judge of the Court of Claims

Papers Considered:

  1. Defendant's Notice of Motion to Dismiss, filed August 17, 2006;
  1. Affirmation of Kathleen M. Arnold in support of defendant's motion to dismiss, dated August 17, 2006, with exhibits;
  1. Affidavit of Joy F. Barcomb in support of defendant's motion to dismiss, sworn to July 19, 2006;
  1. Affidavit of claimant in opposition to motion to dismiss, sworn to October 16, 2006, with exhibits.

[1].This and other decisions of the Court of Claims may be found at the Court's website: