New York State Court of Claims

New York State Court of Claims

PETTY v. THE STATE OF NEW YORK, #2007-015-015, Claim No. 114301, Motion No. M-74180


Motion to dismiss bailment claim as untimely was 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:
Reginald Petty, Pro Se
Defendant’s attorney:
Honorable Andrew M. Cuomo, Attorney General
By: Paul F. Cagino, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
February 29, 2008
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


Defendant moves to dismiss this bailment claim as untimely pursuant to CPLR 3211 (a) (2) and Court of Claims Act §10 (9). Claimant, an inmate proceeding pro se, filed and served a claim on October 1, 2007 alleging the loss of certain personal property on October 29, 2006. Claimant filed an administrative claim which was denied on November 27, 2006. His appeal to the Deputy Superintendent for Administration was denied on December 5, 2006. After allegedly “receiving more information as to his personal property” the claimant filed a second administrative claim on February 22, 2007 (claim ¶ 11). This claim was initially returned to the claimant (in error according to the claim) and was thereafter resubmitted. The second claim was denied on March 26, 2007. Claimant filed an appeal which was denied on May 22, 2007.

In support of its dismissal motion the defendant argues that the claimant failed to file and serve the claim within 120 days following exhaustion of his administrative remedy as required by Court of Claims Act § 10 (9). Defendant argues that the claimant's administrative remedy was exhausted on December 5, 2006 when the appeal of the first administrative claim was denied. Alternatively, the defendant contends that the claim filed on October 1, 2007 is untimely whether the date of accrual is measured from the date the first appeal was denied on December 5, 2006 or May 22, 2007, the date the appeal of the second administrative claim was denied.

Court of Claims Act § 10 (9) requires that an inmate in the custody of the Department of Correctional Services (DOCS) exhaust his or her administrative remedies prior to filing a claim for the loss of personal property. Thereafter, a claim must be filed and served within 120 days after the date on which the claimant has exhausted such remedy. The administrative remedy established by DOCS is set forth in 7 NYCRR part 1700, which provides a two-tier system of administrative review (see 7 NYCRR 1700.3). An inmate claim form (Form 1421) must be filed within five days after the discovery of the loss (7 NYCRR 1700.4 [a]) and the initial review must be completed within fifteen working days of receipt of the claim by the reviewer (7 NYCRR 1700.4 [b]). Thereafter, further review may be sought by appeal to the facility superintendent (see 7 NYCRR 1700.3[b])[1].

Defendant established that the claim was filed more than 120 days after the date on which the claimant exhausted his administrative remedy. Whether the claimant exhausted his administrative remedy upon the denial of his first administrative appeal on December 5, 2006 or his second administrative appeal on May 22, 2007, the claim filed and served on October 1, 2007 was untimely. The time limitations in the Court of Claims Act are jurisdictional in nature, statutory requirements conditioning suit must be strictly construed (Lyles v State of New York, 3 NY3d 396 [2004]; Dreger v New York State Thruway Auth., 81 NY2d 721, 724 [1992]; Pristell v State of New York, 40 AD3d 1198 [2007]). As a result, the Court is without discretion to extend the applicable period of limitation for service and filing of the claim and the claimant's proposed excuses for the delay in serving and filing the claim are, therefore, irrelevant[2].

Defendant's motion to dismiss for lack of jurisdiction based on claimant's failure to timely serve and file the claim pursuant to Court of Claims Act § 10 (9) is granted. The claim is dismissed.

February 29, 2008
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
  1. Notice of motion dated November 6, 2007;
  2. Affirmation of Paul F. Cagino dated November 6, 2007 with exhibit;
  3. Affidavit in opposition to the defendants motion to dismiss sworn to December 13, 2007 with exhibit;
  4. Letter reply of Paul F. Cagino dated December 18, 2007 with exhibits.

[1].Claims over $500.00 are forwarded to Central Office for review by the Director of Budget (see 7 NYCRR 1700.3 [b][2]. The dates utilized by the Court in determining the instant motion are those set forth in the claim).
[2]. Notably, late claim relief pursuant to Court of Claims Act § 10 (6) is not available to bailment claims filed pursuant to Court of Claims Act 10 (9) (Roberts v State of New York, 11 AD3d 1000 [2004]).