New York State Court of Claims

New York State Court of Claims

FULTON v. THE STATE OF NEW YORK, #2007-015-167, Claim No. 112849, Motion No. M-72651


Bailment claim was dismissed for failure to exhaust administrative remedies.

Case Information

1 1.The caption of this claim is amended sua sponte to reflect the State of New York as the properly named defendant.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
The caption of this claim is amended sua sponte to reflect the State of New York as the properly named defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant’s attorney:
Alvin Fulton, Jr., Pro SeNo Appearance
Defendant’s attorney:
Honorable Andrew M. Cuomo, Attorney General
By: Paul F. Cagino, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
March 29, 2007
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


The defendant's pre-answer motion to dismiss this claim for lack of jurisdiction based on the claimant's alleged failure to exhaust his administrative remedies is granted, without opposition. On October 6, 2006 the claimant, an inmate at Great Meadow Correctional Facility, filed a claim alleging that certain of his personal property was lost or damaged during a "cell frisk" which occurred on May 21, 2006. On May 24, 2006 claimant submitted an Inmate Claim Form asserting the loss of and damage to his property during the course of the frisk. The claim was denied on June 6, 2006 and no appeal was taken as reflected by the failure to complete Part 4 of the Inmate Claim Form attached to the defendant's moving papers as Exhibit B.

As appears from the documents submitted with the claim, on May 23, 2006 claimant sent the Superintendent a "Grievance Complaint" regarding an alleged "Illegal/Unlawful Search and Seizure". The complaint was thereafter referred to the Inmate Grievance Resolution Committee (IGRC) and, no hearing having been held, the claimant filed a "Notice of Appeal" dated June 8, 2006 in which he alleged that the Department of Correctional Services (DOCS) failed to follow the procedures governing the Inmate Grievance Program as set forth in 7 NYCRR part 701 (see 7 NYCRR 701.5). Having apparently received no response to this correspondence, the claimant sent what he denominated a "Notice Of Appeal On The Original Record" to the Commissioner, again receiving no response. Both the appeal to the Superintendent as well as that to the Commissioner alleged a failure to follow the administrative procedures set forth in 7 NYCRR part 701 for the resolution of the claimant's grievance.

Court of Claims Act § 10(9) provides that an inmate's claim "for recovery of damages for injury to or loss of personal property may not be filed unless and until the inmate has exhausted the personal property claims administrative remedy, established for inmates by the department". 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 5 days of discovery of the loss (7 NYCRR 1700.4[a]), and the initial review must be completed within 15 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 or his designee (see 7 NYCRR 1700.3[b]).

Here, the claimant failed to follow the administrative review procedure established by DOCS for inmate personal property claims (see 7 NYCRR part 1700). No appeal was pursued in accordance with 7 NYCRR 1700.3(b) despite the fact that Part 4 of the Inmate Claim Form captioned "APPEAL" provides the following specific directions regarding the process for appealing the IGRC determination denying his claim:

If dissatisfied with the initial review, the claimant may appeal by completing this section and forwarding this form to the Superintendent.

Instead, the claimant filed a grievance alleging an unlawful search and seizure under the inmate grievance procedures set forth in 7 NYCRR part 701. As a result, the claim must be dismissed for the claimant's failure to exhaust his administrative remedies as required by Court of Claims Act § 10(9).

March 29, 2007
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
  1. Notice of motion dated December 8, 2006;
  2. Affirmation of Paul F. Cagino dated December 8, 2006 with exhibits.