New York State Court of Claims

New York State Court of Claims

JAMES v. STATE OF NEW YORK, #2008-018-632, Claim No. 115004, Motion No. M-74888


Claim dismissed pursuant to CCA § 10(9).

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:
Sherron JamesPro Se
Defendant’s attorney:
Attorney General of the State of New York
By: Bonnie Gail Levy, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
August 26, 2008

Official citation:

Appellate results:

See also (multicaptioned case)


Defendant brings a pre-answer motion to dismiss the claim for failure to comply with

Court of Claims Act § 10(9). Defendant argues that the claim was not served within 120 days of the exhaustion of administrative remedies established by the Department of Correctional Services (hereinafter DOCS) (Court of Claims Act § 10[9]). Claimant, a former inmate within DOCS, served a claim for loss of personal property upon the Attorney General on March 20, 2008. Claimant has submitted no opposition to the motion.

Court of Claims Act §10(9) requires 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 Official Compilation of Codes, Rules and Regulations of the State of New York indicates that DOCS has established a two-tier system of administrative review for the loss of inmates’ personal property which consists of an initial review and an appeal (7 NYCRR §1700.3).

The claim with the attached administrative “Inmate Claim Form” (#110-0252-06) indicates that claimant alleged he lost a detailed list of property worth a total of $1,139.40 after he was moved from Cayuga Correctional Facility (hereinafter Cayuga) to Elmira Correctional Facility (hereinafter Elmira). Elmira approved Inmate Claim (#110-0252-06) and claimant acknowledges receipt of a voucher for $233.08 for payment of the claim. Although claimant’s request for an appeal was not submitted, claimant apparently did appeal the determination from Elmira because on November 8, 2007, a letter was sent to claimant from Karen A. Loeb, Institution Steward, concurring with the Elmira determination and indicating that if this settlement is not accepted, claimant’s only recourse is to file a claim with the Court of Claims.[1] In the claim[2] claimant acknowledges receipt of this letter on November 14, 2007. Claimant then had 120 days from November 14, 2007, or until March 13, 2008, to file and serve his claim in accordance with Court of Claims Act §§ 10(9) and 11. Since defendant did not receive a copy of the claim until March 20, 2008, it is untimely and must be dismissed. The time limitations in the Court of Claims Act are jurisdictional prerequisites to maintaining an action in the Court of Claims and are strictly construed (Lyles v State of New York, 3 NY3d 396 [2004]; Dreger v New York State Thruway Auth , 81 NY2d 721, 724 [1992]; Pristell v State of New York, 40 AD3d 1198 [2007]). This Court does not have discretion to disregard a failure to comply with the statutory filing and service requirements.

Defendant’s motion is granted and the claim is hereby DISMISSED.

August 26, 2008
Syracuse, New York

Judge of the Court of Claims

The Court has considered the following documents in deciding this motion:
1. Notice of Motion.
2. Affirmation of Bonnie Gail Levy, Esquire, Assistant Attorney General, in support, with exhibits attached thereto.
3. Claimant has submitted no opposition to the motion.

[1]. See Exhibits A and B, letter of November 8, 2007 from Karen A. Loeb to claimant.
[2]. Claim ¶ 22.