New York State Court of Claims

New York State Court of Claims

HAYES v. THE STATE OF NEW YORK, #2007-044-503, Claim No. 112441, Motion No. M-72212


Claimant’s bailment claim appears timely to the extent that it may pertain to an institutional property claim filed and appealed at Elmira Correctional Facility. However, if the claim is actually based upon an administrative property claim (for identical property) filed at Southport Correctional Facility, it is untimely. Because claimant did not attach a copy of either administrative claim to the claim served on the Attorney General, the Court is unable to determine the issue on the papers before it. Defendant’s motion to dismiss bailment claim as untimely is denied, without prejudice.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant’s attorney:
Defendant’s attorney:
HON. ANDREW M. CUOMO, ATTORNEY GENERALBY: Carol A. Cocchiola, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
January 26, 2007

Official citation:

Appellate results:

See also (multicaptioned case)


Defendant State of New York (defendant) moves for an order dismissing this claim based upon claimant's failure to comply with Court of Claims Act § 10 (9). Claimant, an inmate proceeding pro se, opposes the motion.

This Claim sounds in bailment. Claimant alleges that he was placed in the Special Housing Unit (SHU) at Elmira Correctional Facility (Elmira) on September 2, 2005, and while examining his personal property on September 4, 2005, he noticed that items were missing. Claimant further alleges that he was later transferred from Elmira's SHU to Southport Correctional Facility's (Southport) SHU.[1]

The claim filed with the Clerk of the Court contains an Inmate Claim Form (ICF) dated December 26, 2005, with the facility name listed as Elmira and a facility claim number of 110-0119-05 (the Elmira ICF). The Elmira ICF states that it is a “Revision of claim for Property Stolen on 9/2/05 and 9/4/05,” and lists seven items missing:

1. three sheet sets: burgundy, crimson and green;

2. one burgundy towel set;

3. one pair of boots

4. one white blanket;

5. one Webster College Dictionary;

6. two clear west ben [sic] hot pots; and

7. one “ktv clear tv.”

Claimant stated that the value of these seven items was $274.90. His claim before this Court includes those seven items as well as two “sport long sleeve shirts (Natural & wine)” and seeks “$500.00 in restitution & $200.00 in miscellaneous.”[2]

The Elmira administrative claim was “[d]isapproved based on area Sergeant's investigation” on January 17, 2006. Claimant appealed that determination, and his appeal was denied on February 14, 2006. This claim was filed on June 15, 2006, and was also served on the Attorney General's Office on that date.[3] Although the claim filed with the Clerk of the Court contains a copy of the Elmira ICF, it appears that the claim served upon the Attorney General's Office did not contain the Elmira ICF as an exhibit. In her affirmation in support of defendant's motion to dismiss, Assistant Attorney General (AAG) Carol A. Cocchiola notes that there was no inmate property claim form served with the claim.[4] Defendant apparently instituted a search of prison records, which revealed an ICF dated November 22, 2005 that lists the facility as Southport and contains a facility claim number of 630-0240-05 (the Southport ICF).[5]

In the Southport ICF, claimant alleges that “[m]oreless [sic] on 10/8/05 i [sic] notice several items weren't in my personal property that came from Elmira.” The same seven items that were listed in the Elmira ICF are also listed in the Southport ICF, in the same order and with the same values, again totaling $274.90.[6] The Southport ICF was disapproved on December 19, 2005, with the note that “Items 1-3 received with late property. One blanket in your possession when you were packed at Elmira; one blanket received here. Items 5-7 not shown as being in your possession at the time of your packup at Elmira.” Claimant appealed this administrative determination, and that appeal was denied on January 6, 2006.

To recover for damages for injury to or loss of personal property, a claimant in the custody of the Department of Correctional Services must exhaust the administrative remedies established by the Department by proceeding through a two-tier review process (see 7 NYCRR part 1700) prior to filing a claim with this Court. In order for the claim to be timely, the inmate must file and serve such claim within 120 days after the date on which the inmate exhausted such remedies (Court of Claims Act § 10 [9]). Notably, the 120-day period begins to run from the date that the inmate received notice of the adverse determination, rather than the date that the determination was issued (see Blanche v State of New York, 17 AD3d 1069, 1071 [2005]).

Defendant moves to dismiss this claim arguing that because the Southport administrative claim was denied on January 6, 2006, this claim filed on June 15, 2006 is clearly untimely. Conversely, claimant contends that he filed the claim within 115 days of receiving the denial of his administrative appeal. Initially, claimant’s failure to include the Elmira ICF as an exhibit to the claim actually served on the Attorney General’s Office has generated some confusion in this matter. Defendant is correct in asserting that a claim based upon the determination in the Southport administrative claim would be untimely. However, in this claim as filed with the Clerk of the Court, it is apparent that claimant is seeking damages for property allegedly lost on September 4, 2005 and for which recovery was denied in an administrative claim made on December 26, 2005 at Elmira. Although the Elmira ICF indicates that the appeal was decided on February 14, 2006, claimant avers that he received the decision through the mail on February 16, 2006. Since there is no evidence to the contrary (mainly because defendant did not have benefit of reviewing a copy of the appropriate institutional claim), the 120-day period in which to file a claim apparently did not expire until June 16, 2006. The Court finds that this claim which was both filed with the Clerk of the Court and served on the Attorney General on June 15, 2006 is timely, based upon the evidence currently in the record. Accordingly, defendant’s motion to dismiss is denied without prejudice.[7] Defendant’s time within which to answer or make another dispositive motion is extended for 40 days after filing of this decision and order.

January 26, 2007
Binghamton, New York

Judge of the Court of Claims

The following papers were considered on defendant’s motion to dismiss:

(1) Notice of Motion filed July 13, 2006; Affirmation of Carol A. Cocchiola, AAG dated July 11, 2006 with annexed Exhibits A and B.

(2) Affidavit in Opposition of Jeron Hayes sworn to October 6, 2006.

Filed Papers: Claim filed on June 15, 2006.

[1]. Claimant asserts he first noticed the property missing on September 4, 2005, but also contends that defendant negligently lost his property - presumably the same property - on both that date and on October 6, 2005.
[2]. Claim, p 2.
[3]. Affirmation of Carol A. Cocchiola, AAG, in support of motion, ¶ 2; Exhibit A.
[4]. Affirmation of Carol A. Cocchiola, AAG, in support of motion, ¶ 4.
[5]. Defendant’s Motion to Dismiss, Exhibit B.
[6]. The age of each of the seven items is listed as “Brand New” on the Southport ICF, and as “No Age” on the Elmira ICF. Otherwise, the items listed are identical.
[7]. The Court notes that pursuant to the administrative claim process, “[t]he facility in which the inmate is housed at the time the claim is filed is responsible for investigating and processing an inmate claim [and] [i]f an inmate is transferred, the facility in which the loss occurred must cooperate with the processing facility and provide investigative assistance as requested” (7 NYCRR 1700.5 [a], [b]). The Elmira administrative claim, to recover for property allegedly lost September 4, 2005, was made after denial of the Southport administrative claim seeking recovery for the alleged loss of the identical property on October 8, 2005. Unfortunately, neither the Court nor the Attorney General has the information to determine where claimant was housed when either institutional claim was made. Accordingly, defendant is not precluded from raising any defense based upon the existence and determinations of these two administrative claims and, if appropriate, again moving for dismissal.