New York State Court of Claims

New York State Court of Claims

AMBROSE v. THE STATE OF NEW YORK, #2007-030-502, Claim No. 112792, Motion No. M-72455


Synopsis


Defendant’s motion to dismiss in lieu of an Answer, premised upon the Claimant’s failure to exhaust his administrative remedies prior to commencing his bailment claim granted. Court of Claims Act §10(9). While a claimant is not required as an initial matter to establish this condition precedent to suit, when challenged by a motion to dismiss containing proof that the administrative remedy was not exhausted, Claimant must then present some proof that the condition was satisfied. Since Defendant’s assertion in this motion that such administrative remedy was not exhausted is supported by the sworn affidavit of the record keeper at Green Haven, it then became incumbent upon Claimant to come forward with some evidence that the condition was satisfied. Civil Practice Law and Rules §3211. This he did not do.

Case Information

UID:
2007-030-502
Claimant(s):
WILLIAM AMBROSE
Claimant short name:
AMBROSE
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
112792
Motion number(s):
M-72455
Cross-motion number(s):

Judge:
THOMAS H. SCUCCIMARRA
Claimant’s attorney:
WILLIAM AMBROSE, PRO SE
Defendant’s attorney:
HON. ELIOT SPITZER, NEW YORK STATE ATTORNEY GENERAL
BY: MARY B. KAVANEY, ASSISTANT ATTORNEY GENERAL
Third-party defendant’s attorney:

Signature date:
January 10, 2007
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)

.

Decision


The following papers numbered 1 to 4 were read and considered on Defendant’s motion


to dismiss:

1,2 Notice of Motion, Affirmation by Mary B. Kavaney, Assistant Attorney General and attached exhibits

  1. Notice of Motion in Response to Assistant Attorney General Motion by William Ambrose, Claimant
  1. Filed Papers: Claim
William Ambrose describes the nature of his claim, arising at Green Haven Correctional Facility on June 21, 2006, as follows: “I was moved to the box from my cell. I was going to the yard and before i made out to the yard i was sent straight to the box (S.H.U.). When i was in (S.H.U.) 3 days later i was asked to inspect my property and that is when I notice that my property was missing. I also know that my cell was searched the day i was sent to the S.H.U.” (sic) [Claim Number 112792, ¶ 2]. He also asserts that the claim is one to recover damages for loss of personal property, and that the claim is filed within 120 days of the exhaustion of claimant’s administrative remedies. [Ibid. ¶5].

The Defendant has served and filed this motion to dismiss in lieu of an Answer, premised upon the Claimant’s alleged failure to exhaust his administrative remedies prior to commencing this lawsuit in the Court of Claims. In support of this argument, Defendant has appended an Affidavit from Mary Springett, Inmate Records Coordinator I at Green Haven Correctional Facility, indicating that as of October 6, 2006, no grievance regarding this inmate’s alleged loss of personal property on June 21, 2006 was ever filed. [Affirmation by Mary B. Kavaney, Assistant Attorney General, Exhibit 2]. The claim herein was filed in the Office of the Chief Clerk on September 21, 2006.

In response, the Claimant indicates that he did file an administrative facility claim

“. . . with the County of Dutchess, Green Haven Corr. Fac. on 6-26-06.” [Notice of Motion in Response to Assistant Attorney General Motion by William Ambrose, Claimant, ¶2]. He further indicates that he was told that his “claim was being looked into . . .” but never received a response. [Ibid. ¶3]. Claimant does not provide any proof of this assertion - such as copies of his facility claim, or the indication of any number assigned to it for example - or any correspondence from the facility.

Court of Claims Act §10(9) provides that an inmate in the custody of the New York State Department of Correctional Services [DOCS] who seeks damages for the alleged loss of personal property “may not” file such a claim in this court “. . . 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 remedy referred to is codified at 7 NYCRR Part 1700 - commonly referred to as a facility claim - and requires that the inmate file an inmate claim form within five (5) days of discovery of the loss. See 7 NYCRR §1700.4. The time to file a claim begins for Court of Claims purposes on the date the Claimant receives notice of the determination by DOCS. See Blanche v State of New York, 17 AD3d 1069 (4th Dept 2005).

While a claimant is not required as an initial matter to establish this condition precedent to suit,[1] that is, he is not required to attach a copy of any decision concerning his facility claim to the Claim he serves and files with this Court, when challenged by a motion to dismiss containing proof that the administrative remedy was not exhausted, Claimant must then present some proof that the condition was satisfied. Since Defendant’s assertion in this motion that such administrative remedy was not exhausted is supported by the sworn affidavit of the record keeper at Green Haven Correctional Facility, it then became incumbent upon Claimant to come forward with some evidence that the condition was satisfied. Civil Practice Law and Rules §3211. This he did not do.

Accordingly, Defendant’s motion to dismiss is hereby granted, and Claim Number 112792 is hereby dismissed.




January 10, 2007
White Plains, New York

HON. THOMAS H. SCUCCIMARRA
Judge of the Court of Claims




[1]. See Edwards v State of New York, UID#2001-013-026, M-63697 (Patti, J., December 7, 2001), wherein the Court of Claims noted that the exhaustion requirement need not be pled.