New York State Court of Claims

New York State Court of Claims

MORRIS v. THE STATE OF NEW YORK, #2006-042-500, Claim No. 108536, Motion No. M-72078


Synopsis


This is a motion made by the defendant pursuant to CPLR Rule 3211 (2) and (8) to dismiss the claim for lack of subject matter and/or personal jurisdiction. The defendant’s motion is granted and the claim is dismissed.


Case Information

UID:
2006-042-500
Claimant(s):
ARTHUR MORRIS
Claimant short name:
MORRIS
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
108536
Motion number(s):
M-72078
Cross-motion number(s):

Judge:
NORMAN I. SIEGEL
Claimant’s attorney:
ARTHUR MORRIS, Pro Se
Defendant’s attorney:
HON. ELIOT SPITZER
Attorney General of the State of New YorkBy: JOEL L. MARMELSTEIN, AAG
Third-party defendant’s attorney:

Signature date:
September 22, 2006
City:
Utica
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Defendant has made application to dismiss the claim for lack of subject matter and/or lack of personal jurisdiction. The following papers were considered:

1. Notice of Motion filed July 31, 2006.

2. Affirmation of Joel L. Marmelstein, Esq. dated July 20, 2006.

3. Affidavit of Janet A. Barringer, sworn to July 20, 2006.

4. Exhibits A - B annexed to the moving papers.

This matter comes before this Court on a motion by defendant, pursuant to CPLR Rule 3211 (2) and (8) to dismiss the claim for lack of subject matter and/or personal jurisdiction. Claimant failed to submit opposition to the motion.

On August 29, 2003 the Office of the Attorney General of the State of New York received a document entitled “Notice of Intention to File Claim”, submitted by claimant Arthur Morris, an inmate then in custody of the Department of Correctional Services, who alleged that on November 28, 2001 he was transferred from Mid-State Correctional Facility to Wyoming Correctional Facility. Claimant alleges that he mailed three “draft bags” to Wyoming Correctional Facility and that they never arrived. He states that his grievances in regard to this loss were denied.

According to the records of the Office of the Chief Clerk of the Court of Claims, Arthur Morris thereafter filed a claim with said office on November 17, 2003. However, according to the State’s moving papers, such claim was never served upon the Attorney General.

Court of Claims Act § 10 (9) provides that lost personal property claims may not be filed until after exhaustion of administrative remedies, and must be filed and served within 120 days after the date of exhaustion of remedies. Inasmuch as the Notice of Intention to File Claim - the service of which does not extend the 120-day time limitation (Cepeda v State of New York, UID No. 2001-009-049) - represents that grievances were filed and denied, it is assumed that any administrative remedy was exhausted as of the Notice’s service on August 29, 2003.

Given that approximately three years passed following the exhaustion of administrative remedies and the filing of this motion by the Attorney General asserting that the State has never been served with a claim, claimant has not made timely service of a claim. The defendant’s motion (M-72078) is granted and the claim is dismissed.



September 22, 2006
Utica, New York

HON. NORMAN I. SIEGEL
Judge of the Court of Claims