New York State Court of Claims

New York State Court of Claims

SOLER v. THE STATE OF NEW YORK, #2007-015-157, Claim No. 112823, Motion No. M-72469


Synopsis


Bailment claim was untimely filed. Notice of intention does not extend the period in which to file and serve the claim under Court of Claims Act § 10 (a).

Case Information

UID:
2007-015-157
Claimant(s):
ANDRE SOLER
Claimant short name:
SOLER
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
112823
Motion number(s):
M-72469
Cross-motion number(s):

Judge:
FRANCIS T. COLLINS
Claimant’s attorney:
Andre Soler, Pro SeNo Appearance
Defendant’s attorney:
Honorable Andrew M. Cuomo, Attorney General
By: Kathleen M. Arnold, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
March 5, 2007
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The defendant's pre-answer motion to dismiss for lack of jurisdiction upon the claimant's alleged failure to timely file the claim is granted, without opposition. Claimant, an inmate at Upstate Correctional Facility, filed a claim on October 2, 2006 for the loss of personal property which allegedly occurred on September 9, 2005 during the course of his transfer from Great Meadow Correctional Facility to Upstate Correctional Facility. The claim contains an itemized list of the property allegedly lost and asserts a total sum claimed in the amount of $533.63. Claimant pursued his claim through administrative channels, which resulted in an award of $48.87. The award was affirmed on appeal on May 25, 2006. The decision on the appeal reflects that it was received in the Upstate Correctional Facility on June 1, 2006.

In support of its dismissal motion the defendant established that although the claim was served on the Attorney General on September 21, 2006, it was not filed with the Clerk of the Court until October 2, 2006.

Court of Claims Act § 10(9) requires that an inmate in the custody of the Department of Correctional Services exhaust available administrative remedies prior to filing a claim for the loss of personal property. Thereafter, a claim must be "filed and served" within one hundred twenty days after the date on which the claimant has exhausted such remedy. In this case the defendant established that the claim was filed more than one hundred and twenty days after the date on which the claimant exhausted his administrative remedy. Although the time to file and serve a claim for the loss of property begins to run upon receipt of the administrative determination (see Blanche v State of New York, 17 AD3d 1069), here it appears that the administrative determination was received on June 1, 2006 thereby requiring a timely claim to be filed by September 29, 2006. Thus, the claim filed on October 2, 2006 was untimely.

Claimant's alleged service of a notice of intention to file a claim on July 10, 2006 does not extend the period in which to file and serve a claim under Court of Claims Act § 10(9). Unlike Court of Claims Act § 10(3), no provision is made in § 10(9) for serving a notice of intention to file a claim. As a result, the time within which the claim must be filed and served is not extended by the service of a notice of intention (see Gloster v State of New York, 6 Misc 3d 1001[A][Ct Cl 2002]). Defendant's motion to dismiss for lack of jurisdiction based on the time limitation set forth in Court of Claims Act § 10(9) is granted and the claim is dismissed.



March 5, 2007
Saratoga Springs, New York

HON. FRANCIS T. COLLINS
Judge of the Court of Claims


The Court considered the following papers:

  1. Notice of motion dated October 27, 2006;
  2. Affirmation of Kathleen M. Arnold dated October 27, 2006 with exhibits.