New York State Court of Claims

New York State Court of Claims

MOORE v. THE STATE OF NEW YORK, #2007-028-509, Claim No. 112437, Motion No. M-72031


Pro se Claimant’s failure to include a “total sum claimed” in his Claim seeking to recover for lost property is not a fatal defect where, with reasonable effort, an adequate investigation of the underlying facts can be made and where Defendant is in possession of Claimant’s inmate claim form which lists, in detail, the amount claimed for each item.

Case Information

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

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

Third-party defendant(s):

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

Claimant’s attorney:
Defendant’s attorney:
BY: Kathleen M. Arnold, Esq.Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
January 12, 2007

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers were read on Defendant’s motion for an order of dismissal:

1. Notice of Motion and Supporting Affirmation of Kathleen M. Arnold, AAG, with annexed Exhibits;

2. Affidavit in Opposition of Nathaniel Moore, pro se, with annexed exhibits; and

3. Reply Affirmation of Kathleen M. Arnold, AAG.

Filed papers: Claim

This is a claim to recover money damages for property that, Claimant alleges, was destroyed by correction officers in the package room at Coxsackie Correctional Facility in May 2005. The substantive portion of the Claim reads, in its entirety, as follows: “This claim arise from the act or omissions of correctional officers around May 15th, 2005. Islamic oils was send back to company, but officers that was sending oils back, empty them out.” The claim was filed on June 14, 2006.

In lieu of answering, Defendant moved for an order dismissing the claim on two grounds: 1) failure to comply with Court of Claims Act § 10(9), which requires that inmates asserting claims for property loss must first exhaust the administrative remedies provided by the Department of Correctional Services (DOCS) and 2) failure to set forth a “total sum claimed” as required by section 11(b) of the Court of Claims Act.

The first portion of the motion was withdrawn when, in his responsive affidavit, Claimant provided a copy of the institutional claim that he filed, and appealed (Moore Affidavit, Exhibit A).[2] Defendant’s second asserted ground for dismissal must also fail. The holdings in Morris v State of New York (27 AD3d 282 [1st Dept 2006]) and Kolnacki v State of New York (28 AD3d 1176 [4th Dept 2006]) establish that the absence of a total sum claimed is not a fatal defect so long as the information contained in the Claim provides sufficient information to allow the State to investigate the matter and assess its potential liability. As this Court recently stated in Herbert v State of New York (13 Misc 3d 1237[A] [2006]), this Court is bound by those decisions, although it sits in the Third Department which has not spoken on the issue (Statutes § 72[b]; Mountain View Coach Lines, Inc. v Storms, 102 AD2d 663 [2d Dept 1984]). In addition, as was the case in Herbert, where the information alleged to be missing was a list of the “items of damage” in a property loss claim, this missing information here, the total sum that Claimant is seeking, “is readily available to Defendant, as such a list was required for and would be part of the record of Claimant's institutional claim and appeal.”

Defendant’s motion is DENIED.

January 12, 2007
Albany, New York

Judge of the Court of Claims

[2]. Defense counsel contends that because the institutional claim was filed at Elimira Correctional Facility, to which Claimant had been transferred, rather than Coxsackie Correctional Facility, where the loss was alleged to have occurred, “The Office of the Attorney General had no information which would have led it to believe that claimant filed his Inmate Claim Form.” This is not acceptable. The Attorney General is representing DOCS, and its client agency has extensive and competent records regarding its inmates and the movement of those inmates from one facility to another. It is no burden to require, before the State seeks dismissal of a lawsuit, depriving a litigant of his day in court, that a search be made to see if a particular Claimant filed an inmate claim at any of the facilities at which he was housed during the relevant time period. In fact, it would appear that DOCS policies and procedures require that an inmate who has been transferred commence his inmate claim at his new facility, for Claimant in this case was advised by the Superintendent of Coxsackie Correctional Facility that because an inmate claim form could not be found at Coxsackie, Claimant should “start the process at Elmira” (Moore Affidavit, Exhibit B2).