New York State Court of Claims

New York State Court of Claims

PARISI v. THE STATE OF NEW YORK, #2007-041-003, Claim No. 112989, Motion Nos. M-72661, CM-72755


Synopsis


Defendant’s motion to dismiss for failure to timely serve and file claim is granted and claimant’s cross-motion for extension of time to serve and file claim is denied since Court lacks statutory discretion to extend time to file an inmate lost property claim.

Case Information

UID:
2007-041-003
Claimant(s):
JOHN PARISI
1 1.The caption has been amended sua sponte to reflect the only proper defendant.
Claimant short name:
PARISI
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :
The caption has been amended sua sponte to reflect the only proper defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
112989
Motion number(s):
M-72661
Cross-motion number(s):
CM-72755
Judge:
FRANK P. MILANO
Claimant’s attorney:
John ParisiPro Se
Defendant’s attorney:
Hon. Andrew M. Cuomo
New York State Attorney GeneralBy: Paul F. Cagino, Assistant Attorney General
Third-party defendant’s attorney:

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

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Defendant moves to dismiss claimant’s lost property claim based upon failure to file and serve the claim within one hundred twenty days after the exhaustion of claimant’s administrative remedy. Claimant cross-moves to extend his time to file and serve the claim.

Court of Claims Act § 10 (9) governs the filing and service requirements for inmate lost property claims:
“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. Such claim must be filed and served within one hundred twenty days after the date on which the inmate has exhausted such remedy.”

The claim alleges that defendant lost his personal property on March 29, 2006. On that same day, claimant filed an “Inmate Claim Form” with defendant as required by the administrative remedy promulgated pursuant to Court of Claims Act § 10 (9) and set forth at 7 NYCRR Part 1700, entitled “Inmate Personal Property Claims.”

Upon the filing of a claim, 7 NYCRR 1700.3 provides that a facility reviewer will make an initial decision to approve or deny the claim and that an appeal of the initial decision may be made to either the facility superintendent or to the Department of Correctional Services Central Office for review, depending upon the alleged value of the lost property. 7 NYCRR 1700.3 (b)(4) advises that “[n]o further administrative review is available after appeal. The remaining option is for the inmate to pursue the claim in the Court of Claims.”

The administrative claim was disapproved on June 12, 2006 and claimant’s appeal of the disapproval was denied on June 20, 2006 by the facility superintendent. On June 22, 2006, the facility superintendent advised claimant of the denial of his appeal and advised him that he had “the option at this time to file a claim with the Court of Claims.”

Claimant did not file and serve the claim until November 6, 2006, more than one hundred twenty days after his administrative remedy had been exhausted, resulting in defendant’s motion to dismiss.

Claimant admits that he failed to timely file and serve the claim but seeks an extension of his time to file and serve his claim because circumstances of his incarceration allegedly prevented timely action on his part.

In general, pursuant to Court of Claims Act § 10 (6), the Court, upon application and in its discretion, may permit the late filing and service of a claim “at any time before an action asserting a like claim against a citizen of the state would be barred under the provisions of article two of the civil practice law and rules.”

However, in Roberts v State of New York (11 AD3d 1000, 1001 [4th Dept 2004]), the court held:
“[T]hat the discretionary authority to grant permission to file a late claim pursuant to Court of Claims Act § 10 (6) does not apply to the inmate claims [filed pursuant to Court of Claims Act § 10 (9)]. The remedy of permission to file a late claim contained in section 10 (6) is expressly available only to a litigant who fails to file or serve a claim upon the attorney general or fails to serve a notice of intention upon the attorney general ‘as provided in the foregoing subdivisions,’ which obviously do not include subdivision (9), a subsequent subdivision. The ‘foregoing subdivisions’ referred to in subdivision (6) set forth the applicable time limits for filing claims based on appropriation of real property (§ 10 [1]), wrongful death (§ 10 [2]), property damage or personal injury caused by negligent, unintentional or intentional conduct (§ 10 [3], [3-a], [3-b]), and breach of express or implied contract and any other claim not otherwise provided for by section 10 (§ 10 [4]). We conclude that the failure to include inmate property claims in the subdivisions preceding subdivision (6) when they were specifically made the subject of subdivision (9) ‘may be construed as an indication that [their] exclusion was intended’ (McKinney's Cons Laws of NY, Book 1, Statutes § 74).”

The Court therefore lacks statutory discretion to extend the claimant’s time to file his inmate lost property claim. The defendant’s motion to dismiss is granted and the claimant’s cross-motion for an extension of time to file and serve the claim is denied.


January 26, 2007
Albany, New York

HON. FRANK P. MILANO
Judge of the Court of Claims


Papers Considered:

  1. Defendant’s Notice of Motion to dismiss claim, filed December 13, 2006;
  2. Affirmation of Paul F. Cagino, dated December 13, 2006, with annexed exhibits;
  3. Claimant’s cross-motion for extension of time to file and serve claim, filed December 28, 2006, and annexed exhibits;
  4. Affirmation in opposition to cross-motion of Paul F. Cagino, dated and filed January 17, 2007.