New York State Court of Claims

New York State Court of Claims

MURRAY v. THE STATE OF NEW YORK, #2007-037-037, Claim No. 109266, Motion No. M-73760


Synopsis


Defendant’s motion to dismiss the claim for loss of personal property on the grounds that the Claimant failed to exhaust his administrative remedies and failed to timely file and serve the claim is denied.

Case Information

UID:
2007-037-037
Claimant(s):
GARRY MURRAY, 99-A-2434
Claimant short name:
MURRAY
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
109266
Motion number(s):
M-73760
Cross-motion number(s):

Judge:
JEREMIAH J. MORIARTY III
Claimant’s attorney:
Garry Murray, Pro Se
Defendant’s attorney:
Hon. Andrew M. Cuomo
New York State Attorney General
By: James L. Gelormini, Esq.Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
September 20, 2007
City:
Buffalo
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

The following were read and considered with respect to Defendant’s motion to dismiss the claim:
1. Notice of motion and affirmation of Assistant Attorney General James L. Gelormini

dated July 20, 2007, with annexed Exhibits 1-4.


Filed papers: Claim filed April 28, 2004; Answer filed May 27, 2004.

This is a claim for loss of personal property which occurred during a brief period of time when the Claimant, a pro se inmate, was being transferred from Groveland Correctional Facility (Groveland) to the Special Housing Unit (SHU) at Livingston Correctional Facility (Livingston) and then to Collins Correctional Facility (Collins). Defendant moves to dismiss the claim on the grounds that Claimant failed to exhaust his administrative remedies and failed to timely serve and file his claim.

Inmate bailment claims are governed by § 10 (9) of the Court of Claims Act, which specifically requires an inmate to exhaust the administrative remedies established by the Department of Correctional Services (DOCS) before commencing a claim for loss of personal property. DOCS has established a two-tier system for handling such claims consisting of an initial review followed by an appeal (see 7 NYCRR 1700.3). Both of these separate and distinct procedural steps must be completed prior to the service and filing of a claim.

Defendant argues that Claimant failed to exhaust these administrative remedies by waiting over thirty (30) days after discovering his personal property was missing before submitting an inmate claim form (step one of the two-tier administrative process) in dereliction of regulation 7 NYCRR 1700.4 (a) which states that an inmate is to file an inmate claim form within five (5) working days after discovery of the loss. According to the inmate claim form annexed to Defendant’s motion papers as Exhibit 2, however, DOCS accepted and investigated Claimant’s initial facility claim and his appeal and denied both, not because the facility claim was submitted late, but because Claimant failed to prove that he owned the items allegedly missing. Because Claimant completed the two-tier administrative process established by DOCS and because failure to comply with the time frames established by DOCS for commencing the administrative process, which are to be “interpreted with some flexibility” (7 NYCRR 1700.4 [a]),[1] is not addressed by § 10 (9) of the Court of Claims Act, Defendant’s motion to dismiss the claim for Claimant’s failure to exhaust his administrative remedy must be denied (see Lumpkin v State of New York, Ct Cl, January 15, 2002, Collins, J., claim no. 104809, motion no. M-64118, UID # 2002-015-213).[2]

Defendant also moves to dismiss the claim by alleging that the claim was not filed and served in a timely manner. Pursuant to § 10 (9) of the Court of Claims Act, an action “for recovery of damages for injury to or loss of personal property ... must be filed and served within one hundred twenty days after the date on which the inmate has exhausted” his administrative remedies. According to the inmate claim form annexed to Defendant’s motion papers as Exhibit 2, Claimant exhausted his administrative remedies in April of 2003 when his appeal from the initial review of his facility claim was denied. Because the service and filing requirements of the Court of Claims Act are jurisdictional in nature and must be strictly construed (Finnerty v New York State Thruway Auth., 75 NY2d 721 [1989]), it was incumbent upon Claimant to serve and file his claim for loss of personal property within one hundred and twenty days of his receipt of the notice of the final administrative determination (Blanche v State of New York, 17 AD3d 1069 [2005]). Unfortunately, Claimant waited until April of 2004, approximately one year later, before serving and filing his claim. This delay renders the claim jurisdictionally defective.

According to the claim, in May of 2003, within one hundred twenty days of the final determination of his administrative claim, Claimant did serve upon the Attorney General a notice of intention to file a claim. No provision is made, however, in § 10 (9) of the Court of Claims Act for serving a notice of intention to file a claim. Accordingly, the time within which to serve and file a claim for loss of personal property is not extended by the service of a notice of intention (Gloster v State of New York, 6 Misc 3d 1001 A [Ct Cl 2002]). Thus, the claim would have to be dismissed as being jurisdictionally defective unless Defendant waived the jurisdictional defect.

Pursuant to § 11 (c) of the Court of Claims Act:
“Any objection or defense based upon failure to comply with (i) the time limitations contained in section ten of this act, (ii) the manner of service requirements set forth in subdivision a of this section . . . is waived unless raised, with particularity, either by a motion to dismiss made before service of the responsive pleading is required or in the responsive pleading, and if so waived the court shall not dismiss the claim for such failure.”

In its answer, Defendant raised three separate affirmative defenses, inter alia, which must be considered to determine if Defendant raised its objection to the timeliness of service and filing with sufficient particularity to preserve its objection under 11 (c) of the Court of Claims Act. The sixth affirmative defense alleges that the notice of intention did not extend the time to serve or file the claim. The seventh affirmative defense alleges that the Claimant did not exhaust the administrative remedy. The eighth and most significant affirmative defense alleges that the “claim is untimely as claimant did not utilize at [sic] all the administrative remedy established for inmates by the department of correctional services as required by § 10 (9) of the Court of Claims Act and the time to utilize such administrative remedy has now expired.”

To be particular enough to withstand an 11 (c) scrutiny, the affirmative defense must state the nature of the defense, the statute(s) relied upon and set forth the required time period and claimed defect (see Czynski v State of New York, 16 Misc 3d 465 [2007]). While the eighth affirmative defense states that the claim is untimely and references § 10 (9) of the Court of Claims Act, it fails to state that a claim for loss of personal property has to be served and filed within one hundred twenty days of exhaustion of the administrative remedy pursuant to § 10 (9) or that the Claimant’s claim had not been served or filed within the requisite one hundred twenty days of April, 2003 when the appeal of the initial administrative claim had been denied. Without notice of the required time period or of the claimed defect, neither the eighth affirmative defense nor any other defense in the answer is sufficiently particular under § 11 (c) of the Court of Claims Act to preserve the defense of untimeliness. Accordingly, the Court may not dismiss the claim as being untimely.

Based on the foregoing, it is hereby

ORDERED, that Defendant’s motion to dismiss (M-73760) is denied.



September 20, 2007
Buffalo, New York

HON. JEREMIAH J. MORIARTY III
Judge of the Court of Claims




[1]. Indeed, regulation 7 NYCRR 1700.6 (b) indicates that there may be “extenuating circumstances that would call for discretion to excuse late filing, including ... inmate was in transit at the time of the loss ... enroute to a new facility, in restricted housing ...” or “ it was not clear whether or not any loss had taken place ...” or there existed “other unusual circumstances.” While Claimant did not serve any opposing papers, the claim indicates that Claimant was in transit between three correctional facilities at the time of the loss and, accordingly, is unsure at which facility the loss occurred. Moreover, Claimant was placed in SHU at Livingston, thus restricting access to personal property, and he wrote letters in an attempt to locate his property as soon as he discovered certain items were missing (see copies of correspondence annexed to the claim as filed and served).
[2]. This and other Court of Claims decisions can be found on the Court’s web site at www.nyscourtofclaims.state.ny.us.