New York State Court of Claims

New York State Court of Claims

SMYTHE v. STATE OF NEW YORK, #2007-045-500, Claim No. 108678


Synopsis


inmate pro se bailment trial

Case Information

UID:
2007-045-500
Claimant(s):
FRANCIS SMYTHE
Claimant short name:
SMYTHE
Footnote (claimant name) :

Defendant(s):
STATE OF NEW YORK
Footnote (defendant name) :
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
108678
Motion number(s):

Cross-motion number(s):

Judge:
GINA M. LOPEZ-SUMMA
Claimant’s attorney:
Francis Smythe, Pro Se
Defendant’s attorney:
Hon. Andrew M. Cuomo, Attorney GeneralBy: Jeane Strickland Smith, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
February 22, 2007
City:
Hauppauge
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Francis Smythe, the claimant herein, filed a claim on December 22, 2003 which alleged that defendant, the State of New York, through its agents, negligently lost his property while he was incarcerated at the Green Haven Correctional Facility. On January 26, 2007, a trial was held at the Sing Sing Correctional facility.


Claimant testified that his property was “packed-up” from his cell on March 10, 2003 by certain correction officers after he was taken to Saint Agnes Hospital for a medical emergency. On March 25, 2003, when his property was returned to him, he discovered that several items were missing. Claimant further established through his testimony and documentary evidence that on May 23, 2003 he filed an institutional personal property claim. That claim was denied on December 18, 2003.
New York State Department of Correctional Services Directive No. 2733 establishes a two-tier system of administrative review for inmate personal property claims which includes an initial review and an appeal (Def Exh B). Claimant made no allegation in his claim that he appealed the denial of his personal property claim. Claimant testified that he was not sure if he filed an appeal. Finally, claimant’s Inmate Claim Form (Cl Exh 5), confirms that no appeal was taken prior to the filing of the instant claim.

Court of Claims Act § 10(9) provides 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. Such claim must be filed and served

within one hundred twenty days after the date on which

the inmate has exhausted such remedy.


The Court finds that claimant, by not appealing the denial of his institutional personal property claim prior to filing the instant claim, failed to exhaust his administrative remedies as required by statute. That failure requires dismissal of the claim pursuant to Court of Claims Act

§ 10(9).

Therefore, based on the foregoing, the claim is hereby dismissed.

The Clerk of the Court of Claims is directed to enter judgment accordingly.


February 22, 2007
Hauppauge, New York

HON. GINA M. LOPEZ-SUMMA
Judge of the Court of Claims