New York State Court of Claims

New York State Court of Claims

JOSEPH v. THE STATE OF NEW YORK, #2007-029-038, Claim No. 110061, Motion No. M-73873


Exhaustion of inmate personal property claims remedy. Conduct by defendant contrary to governing regulations, combined with claimant’s best efforts to appeal, may constitute exhaustion. State’s dismissal motion denied.

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:
Defendant’s attorney:
ANDREW M. CUOMO, ATTORNEY GENERALBy: Paul Cagino, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
October 1, 2007
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


This claim, seeking damages for property allegedly lost and damaged during claimant’s transfer from Shawangunk Correctional Facility to Upstate Correctional Facility, and thence to Elmira Correctional Facility, was filed November 5, 2004. Defendant’s answer, filed December 16, 2004, alleges that the court lacks jurisdiction over the claim for two distinct reasons: (1) because claimant failed to exhaust his administrative remedies and the claim “was not filed or served within the 120-day time limitation prescribed by Sections 10(9) and 11 of the Court of Claims Act” [1] and (2) because the claim “does not contain the necessary elements of a claim as prescribed by Court of Claims Act § 11(b), to wit, the time and place where the claim arose.” [2]

Despite maintaining that the court lacks jurisdiction, defendant did not move to dismiss the claim until August 20, 2007, [3] almost three years after filing its answer, after being notified that the claim was scheduled for trial on November 2, 2007.

The claim alleges as follows: Claimant was placed in special housing at Shawangunk on November 10, 2003 and his property was placed in long-term storage. On December 10, he was transferred to Upstate. He had no access to his property until after he arrived at Upstate. When he checked his property, he noticed some items were missing, some were damaged, some State property was packed with his property causing him to be charged excessive postage, and some boxes were half full, also causing excessive postage charges. He filed a property claim at Upstate (no. 840-0414-03), which was denied on the same day without being investigated. He appealed the denial to the Superintendent, who did not respond until September, 2004.

Claimant was then transferred to Elmira and he received some of his property on May 20, 2004. He noticed that a keyboard had a switch that was broken and he filed a second property claim (no. 110-0041-04) and it was agreed that the facility would send the keyboard out for repair. Instead, the facility allowed the repair company to sell the keyboard and, although he concedes that he received the proceeds of the sale, he alleges that he never intended to sell it and that the sale was arranged under false pretenses.

On May 24, 2004, claimant received the balance of his property at Elmira. He alleges there were additional items that were damaged or missing, and that he was again charged excessive postage. He filed a third property claim (no. 110-0043-04), in which he was awarded $25.61, but appealed to the Superintendent on grounds of insufficiency. On appeal, the Superintendent reduced the award to $18.50.

The contents of the preceding three paragraphs, which at this point are mere allegations yet to be proven, were taken entirely from the claim. The first part of defendant’s motion is based on the contention that the allegations fall short of what Court of Claims Act § 11(b) requires of a claim. Those requirements, and the applicable standard of analysis, were succinctly summarized in Smith v State of New York (Ct Cl, Midey, J., UID No. 2006-009-079, Claim No. 112489, Motion No. M-72095, 12/22/06) as follows:
“Court of Claims Act § 11(b) requires that a claim set forth ‘the time when and place where such claim arose, the nature of same, and the items of damage or injuries claimed to have been sustained and the total sum claimed.’ When evaluating a claim against an assertion, as here, that it fails to comply with these requirements of § 11(b), the guiding principle is always whether the claim provides sufficient information to allow for a prompt investigation by the defendant aimed at ascertaining its potential liability (Lepkowski v State of New York, 1 NY3d 201; Heisler v State of New York, 78 AD2d 767).

“When a defendant contends that a claim falls short of this standard, it is incumbent upon the defendant to demonstrate that it was unable to conduct an investigation based upon the information that was provided (Cannon v State of New York, 163 Misc 2d 623; Partridge v State of New York, Ct Cl, Patti, J., Claim No. 90710, Motion No. M-62089; Kerr v State of New York, Ct Cl, Read, P.J., Claim No. 105574, Motion No. M-65237; Turpin v State of New York, Ct Cl, Read, P.J., Claim No. 92485, Motion No. M-58816).”
Smith was a claim where an inmate alleged medical malpractice occurring over a three-year period at various correctional facilities. The court cited Epps v State of New York (199 AD2d 914 [3d Dept 1993]) for the proposition that sometimes providing a “range of dates,” along with identifying the various correctional facilities involved, provides sufficient notice to enable the State to conduct a prompt investigation, the “guiding principle” of § 11(b) analysis. [4]

Here, the claim contains a multitude of detailed factual allegations, including the dates of claimant’s transfers within the correctional system, the dates when he received his property, the numbers of the three property claims he filed and the dispositions of each. To the extent that defendant is suggesting that, under these circumstances, compliance with § 11(b) requires that claimant allege the precise date when and the specific correctional facility where each item of damage or loss occurred, information he obviously does not possess, the contention is specious and is rejected. [5] Defendant does not even address what is supposed to be the guiding principle informing jurisdictional analysis, whether the claim provided sufficient information to allow for a prompt investigation. Applying that standard, the court finds that the claim sufficiently alleges the time when and place where the claim accrued (Lepkowski v State of New York, 1 NY3d 201 [2003]; Heisler v State of New York, 78 AD2d 767 [4th Dept 1980]) and to the extent that the motion seeks dismissal on grounds of non-compliance with § 11(b), it is denied.

The second branch of the motion alleges that claimant failed to comply with Court of Claims Act § 10(9), providing that claims by correctional facility inmates for lost or damaged property may not be filed unless and until the inmate has exhausted the “personal property claims administrative remedy” established by DOCS. The affirmation in support attaches a copy of one of the three property claims referenced in the claim, dated January 20, 2004, and alleges that claimant failed to properly appeal from the decision, thus failing to exhaust the remedy the statute requires as a condition precedent to filing a claim. That conclusion is not apparent from examination of defendant’s exhibit.

It appears that the claim was initially “rejected” on January 24, 2004 with the statement “Claim value not substantiated with copy of purchase invoice . . . [t]his claim may be resubmitted with additional information or documentation to correct the deficiencies checked.” Although he was rejecting the claim and not disapproving it, the reviewing officer signed the form under the “Disapproved” portion. In response, claimant filled out the bottom half of the form – under the instruction “[i]f dissatisfied with the initial review, the claimant may appeal by completing this section and forwarding this form to the Superintendent” – and wrote “I wish to appeal this decision . . . ” because the facility was in possession of his commissary and package room files containing proof of ownership, and resubmitted it. On September 24, 2004, eight months after the initial rejection, the claim form was returned to claimant with the box “Disapproved” checked and references to items not being on I-64 forms and no damage having been noted. This was the original form submitted by claimant; thus the “appeal” section of the form had already been completed by claimant, eight months earlier. Approximately six weeks later, claimant filed the instant claim. It is apparent from reading the claim and claimant’s opposition to this motion that he intended to, and thought he had, appealed from the initial decision, unsuccessfully.

The “personal property claims administrative remedy” established by DOCS is found at 7 NYCRR Part 1700: “Inmate Personal Property Claims.” Section 1700.3 describes the two-tier administrative review process, consisting of an “initial review” and an “appeal.” Section 1700.4 provides that the “initial review shall be completed within 15 working days of receipt of the claim by the reviewer,” and that the “appeal should be reviewed within 15 working days of receipt by the reviewer.”

Compliance with Court of Claims Act § 10(9), requiring exhaustion of the personal property claims administrative remedy and service and filing of the claim within 120 days of such exhaustion, is a condition precedent to an inmate’s right to bring a claim in this court for loss of or damage to personal property, yet “there are some circumstances under which an inmate may claim that exhaustion has occurred due to defendant’s failure to address his claim in a timely manner” (Gagne v State of New York, Ct Cl, Schaewe, J., UID No. 2006-044-005, Claim No. 109626, Dec. 19, 2006). [6]

Here, the claim alleges that claimant filed three separate property claims, that he appealed from the decision in two and that defendant did not comply with the settlement agreement in the third.. Defendant does not address two of those three property claims, and thus the allegations

of the claim that arise from to those two claims must be tried in any event. To the extent that the claim alleges excessive postage charges, those allegations must also be tried, since that is not a claim alleging loss of or damage to property to which § 10(9) applies. What happened with claimant’s third property claim, and why, is not entirely clear from the papers before the court, nor can the court summarily determine, solely on the papers currently before the court, that claimant failed to exhaust the personal property claims remedy. Indeed, it appears that the conclusion that claimant exhausted his remedies within the meaning of the statute may well be justified. As there needs to be a trial in any event, there is no imperative to decide the issue on the eve of trial, on an incomplete record.

The motion to dismiss for lack of jurisdiction is denied. The court will address the issue of claimant’s compliance with Court of Claims Act § 10(9) in the trial decision.

October 1, 2007
White Plains, New York

Judge of the Court of Claims

[1].Answer, First and Second Defenses.
[2].Id., Third Defense.
[3].The Notice of Motion was dated, served and made returnable August 20, 2007 (cf. CPLR 2214) but was adjourned by the Clerk of the Court to September 12, 2007.
[4].This court also recently noted that § 11(b) contains no requirement that a “date” be set forth, only the “time when” the claim accrued, a requirement that may sometimes be met by setting forth a range of dates, providing the Lepkowski/Heisler standard is met (Bellamy v State of New York, UID No. 2006-029-606, Claim No. 109353, Motion No. M-72363, 11/1/06).
[5].In recently amending § 11(b) to eliminate the requirement that the “total sum claimed” be set forth in personal injury claims, the Legislature noted that the amendment “eliminates the requirement that litigants be required to engage in guesswork or speculation” and cautioned that “the fact that no other requirement of Section 11(b) is similarly dealt with in this act should not be interpreted as an indication that courts should require litigants to speculate in order to satisfy any of those requirements.” (L 2007, ch 606, Assembly Memorandum in Support of A8692C).
[6].In Gagne, the court held that defendant’s failure to address claimant’s appeal within 4 ½ months, combined with a letter from claimant to defendant that he was going to consider his administrative remedies exhausted, was held to constitute exhaustion. The court cited Shell v State of New York (Ct Cl, Waldon, J., Claim No. 103998, Motion No. M-65424, Mar. 4, 2003), where the same conclusion was reached after a 28-month delay in processing the administrative claim.