Defendant brings a pre-answer motion to dismiss the claim for failure to comply
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). 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
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 ; Dreger v New York State
Thruway Auth ,
81 NY2d 721, 724 ; Pristell v State of New York,
40 AD3d 1198 ). 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.
2. Affirmation of Bonnie Gail Levy, Esquire, Assistant Attorney General, in
support, with exhibits attached thereto.