New York State Court of Claims

New York State Court of Claims

DURHAM v. UPSTATE CORRECTIONS OFFICERS, WYOMING C.F. CORRECTIONS OFFICERS, #2007-038-572, Claim No. 114009, Motion No. M-73932


Synopsis


Defendant’s motion to dismiss inmate’s bailment claim granted for failure to exhaust administrative remedies.

Case Information

UID:
2007-038-572
Claimant(s):
MOONRA DURHAM
Claimant short name:
DURHAM
Footnote (claimant name) :

Defendant(s):
UPSTATE CORRECTIONS OFFICERS, WYOMING C.F. CORRECTIONS OFFICERS
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
114009
Motion number(s):
M-73932
Cross-motion number(s):

Judge:
W. BROOKS DeBOW
Claimant’s attorney:
MOONRA DURHAM, Pro se
Defendant’s attorney:
ANDREW M. CUOMO, Attorney General of the State of New York
By: Eileen E. Bryant, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
November 27, 2007
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant seeks compensation for personal property allegedly lost or damaged while under the care of the Department of Correctional Services (DOCS) on two different occasions. The first loss allegedly occurred when claimant was transferred from Upstate Correctional Facility to Wyoming Correctional Facility, and claimant filed an administrative claim on March 22, 2007 (see Bryant Affirmation, Exhibit C). This claim was disapproved on May 30, 2007, and the administrative claim form reveals that claimant did not take an administrative appeal from that disapproval (id.). The second loss allegedly occurred when claimant was transferred to Lakeview Correctional Facility, as stated in an administrative claim form dated May 29, 2007 (see Bryant Affirmation, Exhibit D). The administrative claim form reveals that, at the time the claim was served on the Attorney General in June 2007, the administrative claim had not yet been decided. The instant claim seeking relief in the Court of Claims was filed with the Clerk of the Court on July 27, 2007. Defendant moves to dismiss the claim on jurisdictional grounds. Claimant has not submitted opposition to the motion.

Court of Claims Act § 10 (9) states 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.” The administrative remedy for property claims established by DOCS is a two-step process that is set forth in 7 NYCRR § 1700.3. The inmate’s claim must be filed and then reviewed by a claims reviewer (see 7 NYCRR § 1700.3 [a]), and, if the inmate desires further review, the reviewer’s decision may be administratively appealed (see 7 NYCRR § 1700.3 [b]). The failure to comply with both steps set forth in 7 NYCRR § 1700.3 is a jurisdictional defect requiring dismissal of the claim (see Williams v State of New York, 38 AD3d 646, 647 [2d Dept 2007]); Taylor v State of New York, UID #2007-015-553, Claim No. 110325, Collins, J. [May 10, 2007]; Carranza v State of New York, UID #2007-009-002, Claim No. 111547, Motion No. M-72563, Midey, J. [Mar. 6, 2007]).

Defendant’s motion papers demonstrate that claimant did not take an administrative appeal from the disapproval of the administrative claim that was filed on March 22, 2007. Similarly, defendant has demonstrated that the administrative claim filed on May 29, 2007 had not yet completed initial administrative review when this judicial claim was served upon the Attorney General. As noted above, claimant has not submitted opposition to defendant’s motion, and has therefore failed to dispute these facts or otherwise demonstrate that he exhausted the administrative remedies available to him. Accordingly, the Court lacks jurisdiction over Claim No. 114009, and it is

ORDERED, that Motion No. M-73932 is GRANTED and Claim No. 114009 is DISMISSED.



November 27, 2007
Albany, New York

HON. W. BROOKS DEBOW
Judge of the Court of Claims


Papers considered
:


(1) Claim No. 114009, filed July 27, 2007;

(2) Notice of Motion to Dismiss, dated September 6, 2007;

(3) Affirmation of Eileen E. Bryant, AAG, dated September 6, 2007, with exhibits A-D;

(4) Affidavit of Service of Judith A. Crawford, sworn to September 7, 2007.