5,6 Filed papers: claim; answer
Paul Watkins alleges in his claim that defendant’s agents at Green Haven
Correctional Facility illegally confiscated his property on April 13, 2007 after
a cell search, and thereafter destroyed it unlawfully. The claim was served upon
the Attorney General’s Office on or about December 3, 2007, based upon the
affidavit of service filed with the claim. The claim was filed in the Office of
the Chief Clerk of the Court of Claims on December 6, 2007.
The claimant’s motion appears to be one for summary judgment, in that he
asks the court to grant his claim and direct defendant to reimburse him for the
cost of his property and for the theft and loss. Civil Practice Law and Rules
In the claim filed the cause of action asserted is one for a bailment, arising
from the confiscation of claimant’s sneakers during a cell search, and
their eventual destruction in alleged contravention of Mr. Watkins’
request for the property’s disposal pursuant to the Form 2068
“Authorization for Disposal of Personal Property” form. No other
viable cause of action appears to be asserted. Consequently, the damages are
limited to compensatory damages, that is, the value of the property less
depreciation. With respect to value, claimant must satisfy the court at trial
of the fair market value of the items in question. Phillips v Catania,
155 AD2d 866 (4th Dept 1989); Schaffner v Pierce, 75 Misc 2d 21 (Nassau
Dist Ct 1973). Receipts are the best evidence of fair market value.
Punitive damages are available only where there has been gross negligence of a
kind that is “. . . (1) egregious, (2) directed at the . . . [claimant]
and (3) part of a pattern of similar conduct directed at the public at large.
Punitive damages may be recovered in cases where a defendant’s conduct
‘is morally culpable, or is actuated by evil and reprehensible motives,
not only to punish the defendant but to deter [it] as well as others who might
otherwise be so prompted, from indulging in similar conduct in the
future.’ . . . (citation omitted).” Seynaeve v Hudson
Moving & Storage, Inc., 261 AD2d 168, 169 (1st Dept 1999). Punitive
damages are generally unavailable in a “. . . garden variety bailment case
. . . ” [Id.] such as this one.
More significantly, punitive damages are not available against the State of New
York. Sharapata v Town of Islip, 56 NY2d 332, 339 (1982); Harvey v
State of New York, 281 AD2d 846, 848-849 (3d Dept 2001).
Court of Claims Act §11(a) provides that the claim must be served
personally or by certified mail, return receipt requested, upon the attorney
general within the times prescribed in Court of Claims Act §10; and that
service is complete when it is received in the Attorney General’s Office.
Court of Claims Act §11(a)(i). A failure to timely and properly serve the
claim as required results in a lack of personal jurisdiction, unless the State
has failed to properly plead jurisdictional defenses or raise them by motion. In
that case, the defense is waived. Court of Claims Act
Failure to serve the claim at all
results in a lack of subject matter jurisdiction that is not waivable.
It appears that claimant pursued his administrative remedies as required to
serve and file a claim asserting a bailment cause of action, and that a final
administrative determination was made on August 20, 2007. [See Court of
Claims Act §10(9); 7 NYCRR Part 1700]. Claimant’s service and filing
of the claim on or about December 3, 2007 - within one hundred twenty (120)
days of having exhausted his administrative remedy - was timely. Court of
Claims Act §10(9).
Read as asserting negligence or intentional tort causes of action, however, the
claim served and filed herein is untimely, because it was served and filed more
than ninety (90) days after the claim accrued when the property was seized on
April 13, 2007. Court of Claims Act §§10(3), (3-b). Since the
resulting lack of personal jurisdiction has been appropriately raised by motion,
the defense is not waived, and the portion of the claim read as asserting a
causes of action for negligence or intentional tort should be dismissed.
See Court of Claims Act §11(c).
Accordingly, and based upon the foregoing, claimant’s motion [M-74368] is
in all respects denied, and defendant’s cross-motion [CM-74414] is granted
to the extent that any cause of action for negligence or intentional tort is
hereby dismissed, and trial may be had only on the cause of action for a