New York State Court of Claims

New York State Court of Claims

WATKINS v. THE STATE OF NEW YORK, #2008-030-512, Claim No. 114571, Motion Nos. M-74368, CM-74414


Claimant’s motion for summary judgment denied. Defendant’s cross-motion to dismiss granted in part, as to causes of action for negligence or intentional tort. Cause of action for bailment timely asserted by service and filing of claim within 120 days of exhaustion of administrative remedy.

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:
Third-party defendant’s attorney:

Signature date:
March 7, 2008
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers were read and considered on claimant’s motion for an order

granting his claim and on defendant’s cross-motion to dismiss a portion of the claim:

1,2 Notice of Motion by Paul Watkins, claimant; Affidavit of Service

3,4 Notice of Cross-Motion; Affirmation in Opposition to Claimant’s Motion and in Support of Cross-Motion by Barry Kaufman, Assistant Attorney General

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 §3212.

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 §11(c).[1] 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 bailment.

March 7, 2008
White Plains, New York

Judge of the Court of Claims

[1]. “Any objection or defense based upon failure to comply with (i) the time limitations contained in section ten of this act, (ii) the manner of service requirements set forth in . . .[11(a)], or (iii) with the verification requirements as set forth in . . . [11(b)] and . . . [Civil Practice Law and Rules 3022] is waived unless raised, with particularity, either by a motion to dismiss made before service of the responsive pleading is required or in the responsive pleading, and if so waived the court shall not dismiss the claim for such failure.”