New York State Court of Claims

New York State Court of Claims

LINARES v. STATE OF NEW YORK, #2007-039-029, , Motion No. M-73089


Synopsis


Claimant’s motion for permission to file a late bailment claim is denied. Claimant did not serve and file a claim for lost personal property within 120 days from the date that he exhausted his administrative remedies in accordance with Court of Claims Act § 10 (9).

Case Information

UID:
2007-039-029
Claimant(s):
PATRICIO LINARES
Claimant short name:
LINARES
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):

Motion number(s):
M-73089
Cross-motion number(s):

Judge:
JAMES H. FERREIRA
Claimant’s attorney:
Patricio Linares, pro se
Defendant’s attorney:
Hon. Andrew M. Cuomo
Attorney General of the State of New York
By: Paul F. CaginoAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
July 20, 2007
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant, an inmate at Clinton Correctional Facility at the time of the circumstances alleged herein, moves the Court for permission to file a late bailment claim. In support of his motion, claimant offers a proposed notice of intention to file a claim wherein he alleges, among other things, that during July 2006 he packed his personal property items into six bags and left the bags in his cell while he was hospitalized. Claimant further alleges that he returned to his cell to find that the bags had been opened and that “his property [was] loss [sic].” Claimant submitted institutional claims in connection with his alleged property loss which were disapproved upon administrative appeal on November 14, 2006. Defendant opposes the motion.

“Court of Claims Act § 10 (9) expressly requires an inmate seeking to recover damages for lost personal property to file a claim within 120 days following the exhaustion of available administrative remedies” (Pristell v State of New York, 40 AD 3d 1198 [2007]). “It is clear that ‘the requirements of the Court of Claims Act as to the filing of claims must be strictly construed because the question of timeliness of filing is jurisdictional’ ” (id., quoting Roberts v State of New York, 11 AD3d 1000, 1001 [2004]). Moreover, “[the] remedy of permission to file a late claim contained in section 10 (6)” does not extend to inmate property claims brought pursuant to Court of Claims Act § 10 (9) (Roberts v State of New York, supra).

Here, claimant exhausted his administrative remedies on November 14, 2006 when he received notification from the New York State Department of Correctional Services (hereinafter “DOCS”) that no negligence was found on the part of DOCS related to the alleged loss of claimant’s personal property items, and that no further administrative review was available. Claimant had 120 days from the date of DOCS’ final determination to serve and file a claim for lost personal property with the Court. It is undisputed that claimant did not do so within the requisite time frame and, pursuant to the foregoing principles, the remedy of permission to file a late bailment claim is not available.

Accordingly, it is hereby ordered that M-73089 is denied.


July 20, 2007
Albany, New York

HON. JAMES H. FERREIRA
Judge of the Court of Claims


Papers Considered
:
  1. Notice of Motion for Permission to File a Late Claim;
  2. Affidavit in Support of Motion for Permission to File a Late Claim sworn to on March 19, 2007 with proposed Notice of Intention to File a Claim;
  3. Affirmation in Opposition to Notice of Motion for Permission to File a Late Claim dated on April 13, “2004" with exhibit; and
  4. Correspondence dated April 4, 2007 with letter exhibit offered in support of motion.