New York State Court of Claims

New York State Court of Claims

SIEBUHR v. STATE OF NEW YORK, #2007-018-568, Claim No. 113019, Motion No. M-72738


Synopsis


Claim is dismissed pursuant to Court of Claims Act § 8.

Case Information

UID:
2007-018-568
Claimant(s):
JOHN SIEBUHR
1 1.The Court amended the caption sua sponte to reflect the State of New York as the only proper Defendant.
Claimant short name:
SIEBUHR
Footnote (claimant name) :

Defendant(s):
STATE OF NEW YORK
Footnote (defendant name) :
The Court amended the caption sua sponte to reflect the State of New York as the only proper Defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
113019
Motion number(s):
M-72738
Cross-motion number(s):

Judge:
DIANE L. FITZPATRICK
Claimant’s attorney:
JOHN SIEBUHRPro Se
Defendant’s attorney:
ANDREW M. CUOMO
Attorney General of the State of New YorkBy: Thomas M. Trace, Esquire
Third-party defendant’s attorney:

Signature date:
April 26, 2007
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Defendant brings a motion to dismiss a bailment claim on the grounds that Claimant

served and filed his claim before exhausting his administrative remedies as required by Court of Claims Act § 10(9) and for failing to properly serve his claim personally or by certified mail, return receipt requested, in accordance with Court of Claims Act § 11(a).

The claim, which was served upon Defendant on November 20, 2006, by regular mail and filed on November 16, 2006, seeks $207.46 for one package of lost property, which includes food items, a sweatshirt, sweat pants, SONY walkman, pens, stationary, and thermal underwear. Attached to the claim is: a copy of an “Inmate Claim Form” dated September 29, 2006, showing only the front side with no indication of the facility’s initial determination or appeal; a FOIL Request dated January 18, 2006, but appears to have been received by the Correctional Facility on January 13, 2006, seeking a copy of the receipt that UPS or the post office picked up his “stuff” from the jail, the document seeks payment of $.25 for copying costs; a memorandum to Claimant from Kenneth McLaughlin, Director of Operations at the Inspector General’s Office, dated June 29, 2006; a memorandum from Sgt. J. DeMarco of Gouverneur Correctional Facility dated July 1, 2005; a memorandum from Thomas G. Eagen, Director of Inmate Grievance Program for the State Department of Correctional Services dated January 26, 2006, indicating the grievance, GOV-11924-05, entitled, “RTS While on Loss Packages” was received by the Department; a memorandum from P. Bartlett, Payroll Clerk III regarding claim number 810-0075-05 indicating that his claim was received on October 17, 2005; a memorandum from B.J. Turner, H.A.C., dated March 7, 2006, advising that his personal property claim number 810-0140-05 was forwarded to the captain’s office for investigation; and last a letter from Thomas G. Eagen, Director of Inmate Grievance Program at the State Department of Correctional Services, indicating that his grievance, GOV-11924-05, was received and was being processed.

Defendant, in support of its motion, submits the envelope in which the claim was received (Exhibit B) reflecting that it was sent by regular mail with only $.87 postage, and a copy of an administrative claim filed by Claimant (Facility Claim No. 810-0140-05) dated March 6, 2006 (Exhibit D) reflecting the Facility Initial Review dated March 14, 2006. The administrative claim form Defendant attaches has a different date than the one Claimant attached to his claim and states the sum of $207.49 being sought, although the description of the items lost is the same. The form also reflects that no appeal was taken from the Facility Initial Review, a fact confirmed by the affidavit of Nancy K. Martin, an Institutional Steward in the Business Office of Gouverneur Correctional Facility ( Exhibit C). It is her job to process Inmate Claim Form Appeals.

Court of Claims Act § 10(9) requires that:

A claim of any inmate in the custody of the department of correctional

services 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. Such claim must be filed and served within one hundred

twenty days after the date on which the inmate has exhausted such remedy.


The New York State Code of Rules and Regulations indicates that DOCS has established a two-tier system of administrative review for the loss of inmates’ personal property which consists of an initial review and an appeal (7 NYCRR §1700.3).

It appears to this Court that Claimant may have filed two Inmate Claim Forms for the same lost items, one on March 6, 2006, filed with Gouverneur Correctional Facility and one on September 29, 2006, filed with Eastern Correctional Facility. Claimant has failed to prove that he has exhausted his administrative remedies on either claim. The “Receipt of Appeal” memorandum attached to his claim reflects receipt of a Grievance appeal, which is different than a lost property claim appeal. There is no evidence that Claimant received even an initial determination on the claim form attached to the claim he filed in this Court, or that he appealed the claim form (# 810-0140-05) attached to Defendant’s motion papers. Both steps must be completed before Claimant’s administrative remedies have been “exhausted” for purposes of bringing a claim in this Court (Battles v State of New York, Ct Cl, Decision and Order, Fitzpatrick, J., signed July 14, 2006, Claim No. 111341, Motion No. M-71756, UID # 2006-018-525; Christian v State of New York, Ct Cl, Decision and Order, Midey, J., signed May 11, 2001, Claim No. 103806, Motion No. M-63207, UID # 2001-009-024; Richards v State of New York, Ct Cl, Decision and Order, Corbett, J., signed August 3, 2000, Claim No. 102440, Motion No. M-61851, UID # 2000-005-526). Thus, Claimant has failed to meet the requirement of the Court of Claims Act § 10(9).

Even assuming Claimant’s claim is timely pursuant to Court of Claims Act § 10(9), he failed to properly serve the claim by personal service or by certified mail, return receipt requested (Court of Claims Act § 11 [a][i]). This, too, is a fatal jurisdictional defect requiring dismissal of his claim. It is well established that the requirements for service on the attorney general are jurisdictional and must be strictly construed (Byrne v State of New York, 104 AD2d 782, 783, lv denied 64 NY2d 607). Service by a method other than by personal service or certified mail, return receipt requested is not service sufficient to commence an action in this Court (Hodge v State of New York, 158 Misc 2d 438, affd 213 AD2d 766). The Court does not have the discretion to disregard a defect in service (Diaz v State of New York, 174 Misc 2d 63, 64).

This Court, being a Court of limited jurisdiction, lacks the authority to hear cases against the State unless Claimant complies with the limitations of Article II of the Court of Claims Act (see Court of Claims Act § 8). Here, Claimant did not.

Accordingly, the Defendant’s motion is granted and the claim is dismissed.


April 26, 2007
Syracuse, New York

HON. DIANE L. FITZPATRICK
Judge of the Court of Claims


The Court has considered the following documents in deciding this motion:


Notice of Motion......................................................................................................1


Affirmation of Thomas M. Trace, Esquire, in support, with exhibits

attached thereto.............................................................................................2


Claimant’s undated, unsworn “Reply Brief to Defendant’s Motion to Dismiss

Claim,” with attachments, in opposition.......................................................3