New York State Court of Claims

New York State Court of Claims

BOATWRIGHT v. THE STATE OF NEW YORK, #2007-004-529, Claim No. 113274, Motion No. M-73075


Defendant's motion to dismiss claim, based on affirmative defense of claimant's failure to file and serve claim for lost property within 120 days of exhaustion of administrative remedies, is granted.

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:
HON. ANDREW M. CUOMO, ATTORNEY GENERALBY: Roberto Barbosa, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
May 8, 2007

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant, an inmate proceeding pro se, filed this claim alleging that defendant State of New York (defendant) lost several items of his personal property, apparently during his transfer between Elmira Correctional Facility (Elmira) and Southport Correctional Facility. Defendant answered and asserted various affirmative defenses. Defendant now moves to dismiss the claim as untimely. Claimant has not responded.

Although the Court has not been provided with complete documentation concerning the underlying process, it is clear that claimant filed an institutional claim (#110-0252-05) for the missing property, which was denied. Claimant then filed an appeal which was disapproved on May 22, 2006 and he subsequently filed this claim on January 29, 2007. Claimant’s affidavit of service alleges that he mailed the claim to defendant on October 23, 2006.[1] Defendant argues that because the claim was not filed and served within 120 days of claimant’s exhaustion of administrative remedies, this claim is untimely.

To recover for damages for injury to or loss of personal property, a claimant in the custody of the Department of Correctional Services must exhaust his or her administrative remedies by proceeding through a two-tier review process (see 7 NYCRR part 1700) prior to filing a claim with this Court. In order for the claim to be timely, the inmate must file and serve such claim within 120 days after the date on which the inmate exhausted such remedies (Court of Claims Act § 10 [9]).

The administrative appeal in this matter was disapproved by memorandum dated May 22, 2006, and in order to be timely, the claim was required to be filed and served by September 19, 2006. Given that the claim was served on defendant on October 23, 2006 and filed with the Clerk of the Court on January 29, 2007, it is untimely.[2] Defendant properly asserted the affirmative defense of claimant's failure to timely serve and file the claim in its answer (Court of Claims Act § 11 [c]).

The filing requirements set forth in Sections 10 and 11 of the Court of Claims Act are jurisdictional in nature and must be strictly construed (Finnerty v New York State Thruway Auth., 75 NY2d 721, 722 [1989]). Claimant’s failure to comply mandates dismissal of the claim (Lichtenstein v State of New York, 93 NY2d 911 [1999]).

Defendant’s motion is granted and Claim No. 113274 is therefore dismissed.

May 8, 2007
Binghamton, New York

Judge of the Court of Claims

The following papers were read on defendant’s motion to dismiss:

(1) Notice of Motion filed on March 19, 2007; Affirmation of Roberto Barbosa, AAG, dated March 16, 2007, and attached Exhibits A through C.

Filed papers: Claim filed on January 29, 2007; Verified Answer filed on January 11, 2007.

[1]. In its answer verified on January 9, 2007, defendant states that the claim was received in the Attorney General’s Office on December 14, 2006. Notwithstanding the apparent factual conflict in the date of service, the Court will address the timeliness of filing and service by using the earlier date alleged by claimant.
[2]. The 120-day period begins to run from the date that the inmate received notice of the adverse determination, rather than the date that the determination was issued (see Blanche v State of New York, 17 AD3d 1069, 1071 [2005]). However, without opposition papers, there is no basis whereby the Court might infer that claimant was served with the determination later than May 22, 2006.