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
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.