New York State Court of Claims

New York State Court of Claims

BROWN v. THE STATE OF NEW YORK, #2007-044-527, Claim No. 112957, Motion No. M-72950


Inmate's claim for lost property dismissed for failure to timely file and serve within 120 days of exhaustion of administrative remedy. Although claimant asserted that prison officials often delayed his mail, this argument is not supported by actual incidents of mis- or malfeasance, and estoppel is inappropriate given delivery of claim to prison mail room only one day before filing/service deadline.

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: Roberto Barbosa, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
April 13, 2007

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant, an inmate proceeding pro se, filed this claim alleging that defendant State of New York (defendant) lost several items of personal property when he was transferred from Elmira Correctional Facility (Elmira) to Upstate Correctional Facility. Defendant answered and asserted affirmative defenses. Defendant now moves to dismiss the claim as untimely. Claimant opposes the motion.

On April 27, 2006, claimant completed an Inmate Claim Form seeking recovery for missing personal property allegedly worth $1,878. This institutional claim was denied based upon information received from Elmira that “[claimant] refused to sign disbursement to mail excess property upon transfer.” Claimant then filed an appeal which was disapproved on June 29, 2006 and he subsequently filed this claim on October 31, 2006. Defendant argues that because the claim was not filed within 120 days of claimant’s exhaustion of administrative remedies, this claim is untimely. Claimant contends that the claim was submitted to the mail room at Great Meadow Correctional Facility, to be sent to the Clerk of the Court, on October 26, 2006. Claimant accuses correction employees of intentional delay in processing his mail.[1]

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 his or her administrative remedies 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]).

The administrative appeal in this matter was disapproved on June 29, 2006, and in order to be timely, the claim was required to be filed and served by October 27, 2006. Given that the claim was filed with the Clerk of the Court on October 31, 2006, it is untimely.[2] Defendant properly asserted the affirmative defense of claimant's failure to timely file the claim in its answer (Court of Claims Act § 11 [c]).

The filing requirements set forth in Sections 10 and 11 of the Court of Claims Act are jurisdictional in nature and must be strictly construed (Finnerty v New York State Thruway Auth., 75 NY2d 721, 722 [1989]). Claimant’s failure to comply mandates dismissal of the claim (Lichtenstein v State of New York, 93 NY2d 911 [1999]).

Claim No. 112957 is therefore dismissed.

April 13, 2007
Binghamton, New York

Judge of the Court of Claims

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

(1) Notice of Motion filed on February 14, 2007; Affirmation of Roberto Barbosa, AAG, dated February 12, 2007, and attached Exhibits A through C.

2) “Motion in Opposition” of Frank Brown, dated February 20, 2007.

Filed papers: Claim filed on October 31, 2006; Verified Answer filed on November 30, 2006.

[1]. Notwithstanding claimant’s argument that mail room employees often unduly delayed his mail or gave it to other inmates, he has not demonstrated any misfeasance or malfeasance on the part of those employees in this instance (Rivera v State of New York, 5 AD3d 881 [2004]; Wattley v State of New York, 146 Misc 2d 968 [1990]). Claimant admitted that the claim was deposited in the mail room on October 26, 2006, which was only one day before it was required to be filed with the Clerk of the Court, and estoppel under these circumstances is inappropriate (Rivera v State of New York, supra).
[2]. Although 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]), claimant does not assert that he was served with the determination later than June 29, 2006.