New York State Court of Claims

New York State Court of Claims

TAYLOR v. STATE OF NEW YORK, #2007-039-046, Claim No. 111530, Motion Nos. M-71565, M-72025


Synopsis


Claimant moves the Court for an order to recover the value of property allegedly lost and defendant moves the Court for an order dismissing the claim for lack of subject matter jurisdiction pursuant to Court of Claims Act § 10 (9). Defendant’s motion is granted and the claim is dismissed. Defendant offered sufficient proof to establish that claimant failed to exhaust his administrative remedies.

Case Information

UID:
2007-039-046
Claimant(s):
BASHAN TAYLOR
Claimant short name:
TAYLOR
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
111530
Motion number(s):
M-71565, M-72025
Cross-motion number(s):

Judge:
JAMES H. FERREIRA
Claimant’s attorney:
Bashan Taylor, pro se
Defendant’s attorney:
Hon. Andrew M. Cuomo
Attorney General of the State of New York
By: Kathleen M. Arnold, Esq.Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
November 26, 2007
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant Bashan Taylor, an inmate, alleges that defendant was responsible for the loss of various perishable items during approximately September 2005 that he ordered from J & E Warehouse. Issue was joined, and defendant now moves the Court for an order dismissing the claim for lack of subject matter jurisdiction pursuant to Court of Claims Act § 10 (9). Claimant does not offer any opposition to the motion. Instead claimant moves the Court for an order to recover the monetary value of the property alleged to have been lost.

Court of Claims Act § 10 (9) provides, in relevant part, 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.” 7 NYCRR 1700.4 [a] provides that “[a]n inmate must file an ‘inmate claim form’ . . . within five days after discovery of the loss,” and further provides for the initial review, decision and appeal thereon.

In support of its motion, defendant offers the affidavit of Nancy Pulsifer, Keyboard Specialist I at Clinton Correctional Facility. Pulsifer “process[es] inmate claims submitted by inmates within [the] facility.” She states that “[a]ccording to [her] records, [claimant] was an inmate at Clinton Correctional Facility from May, 2004, until his transfer on November 18, 2005 to Adirondack Correctional Facility.” She further attests that claimant “has not submitted an Inmate Claim to Clinton Correctional Facility, as it relates to the above noted claim.” The Court finds that defendant has offered sufficient proof to establish that claimant failed to exhaust his administrative remedies in accordance with Court of Claims Act § 10 (9). Claimant offers no opposition to the motion, and therefore the Court concludes that defendant’s motion to dismiss the claim must be granted. Claimant’s motion is denied as moot.

Accordingly, it is hereby ordered that M-71565 is granted, M-72025 is denied and the claim is dismissed.


November 26, 2007
Albany, New York

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


Papers Considered
:
  1. Notice of Motion to Dismiss dated April 7, 2006;
  2. Affirmation in Support of Motion to Dismiss by Kathleen M. Arnold, AAG, dated on April 7, 2006 with exhibits;
  3. Notice of Motion dated June 19, 2006; and
  4. Affirmation in Opposition by Kathleen M. Arnold, AAG, dated on August 3, 2006.