New York State Court of Claims

New York State Court of Claims

FELIX v. STATE OF NEW YORK, #2008-030-516, Claim No. 114614, Motion No. M-74550


Defendant’s pre-answer motion to dismiss asserting failure to exhaust administrative remedies denied. Claim alleges negligence, not bailment, thus exhaustion not condition precedent to suit

Case Information

Claimant short name:
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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 20, 2008
White Plains

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See also (multicaptioned case)


The following papers were read and considered on defendant’s pre-answer motion to dismiss the claim based on claimant’s purported failure to exhaust his administrative remedies as a condition precedent to suit in this court:
1,2 Notice of Motion; Affirmation in Support of Motion to Dismiss by Jeane L. Strickland Smith, Assistant Attorney General and attached exhibits

  1. Reply by Donald Felix, Claimant and attachments
  1. Filed paper: Claim
Donald Felix alleges in his claim that on June 19, 2007, when he went to the package room at Green Haven Correctional Facility (Green Haven) to pick up the 500 greeting cards he had ordered - at a cost of $1.00 each [Claim number 114614, Exhibit 1] - he was told by personnel that he was only allowed to possess 50 greeting cards per month, and thus could not pick up the entire package. Claimant took the 50 cards allowed, and was advised that the remaining 450 cards would need to be sent out of the facility.

After completing the paperwork for shipping the package out of the facility, including a “2068 form, and a disbursement form,” he asserts that he verbally advised the package room that he wanted the package “fully insured.” [Claim number 114614, ¶¶ 5 and 6]. Mr. Felix explains in his claim that the postal service insurance form is completed by staff, as inmates are not provided with same. According to Green Haven personnel - who apparently complied with Claimant’s request that the package be insured but only to the extent of insuring it for $50.00 - the package was mailed out on June 25, 2007, and received by the Stormville Post Office on June 26, 2007. A receipt confirms this information, and is attached to the claim. [Claim number 114614, Exhibit 2].

On or about August 20, 2007, after Mr. Felix’s inquiries of the vendor as to whether the package had been received, he was advised that it had not arrived. Mr. Felix had provided the vendor with the United States Postal Service [USPS] tracking number. The vendor utilized the USPS tracking number provided by claimant - as provided on the receipt furnished by the facility to Mr. Felix - and was informed by USPS that the insured mail receipt number given was invalid. [Claim number 114614, Exhibit 3].

On August 20, 2007 Mr. Felix filed a grievance, asking that the missing package be located and returned to the vendor. [Claim Number 114614, Exhibit 4]. In a determination dated September 5, 2007, the Superintendent “affirmed” the grievance to the extent that the package was mailed out of Green Haven on June 26, 2007, and suggested that claimant write to the Stormville Post Office.[1] [Ibid. Exhibit 5].

At the same time that he filed the grievance, Mr. Felix filed for complete reimbursement of the cost of the cards on August 20, 2007 pursuant to the inmate personal property claims remedy provided for at 7 NYCRR Part 1700. [Reply by Donald Felix, Exhibit 1]. The personal property claim was disapproved with the reviewing officer indicating that the item was mailed out on June 25, 2007, and that the “inmate should check with post office.” [Id.].

Instead of appealing this personal property claim determination, however, claimant did what he had been directed to do in the two formal attempts at grieving the matter: he wrote to the post office. On or about September 14, 2007 it appears claimant learned from the post office that the item was insured only for $50.00 despite the $450.00 value, and his request of personnel at the facility that it be “fully insured,” and would therefore only receive the cost of the postage plus the insurance value placed on the package by the facility. [See Claim Number 114614, Exhibit 8]. He filed a grievance [see id.], as well as an inmate personal property claim [see Reply, Exhibit 2] on or about September 25, 2007, both of which were appealed and denied, the latter because it was “untimely.” The inmate personal property claim was denied by the Superintendent on October 2, 2007. [Reply, Exhibit 2].

On October 16, 2007 Mr. Felix filed a claim with USPS, seeking reimbursement of $450.00 plus postage in the amount of $12.75. [See Claim Number 114614, ¶13, Exhibit 12]. On November 1, 2007 the USPS granted his claim in the amount of $61.10, advising that the package had only been insured for $50.00. [Id.].

Defendant’s motion seeks dismissal of this claim, wherein claimant seeks reimbursement for the amount not paid for by the USPS insurance, based upon claimant’s alleged failure to exhaust his administrative remedies prior to filing a claim in this court. Court of Claims Act §10(9). In a motion to dismiss a claim for failure to state a cause of action the movant is held to have conceded the truth of every fact alleged by the claimant for purposes of the motion. Civil Practice Law and Rules §3211(a)(7). While claimant may have not appealed the denial of an inmate personal property claim he filed on August 20, 2007, wherein the facility specifically directed him to go to the USPS for relief , and did appeal his second facility claim, discussion of these acts is academic.

More significantly, however claimant has chosen to characterize this claim, it is nonetheless not one alleging loss or damage to property for which exhaustion of administrative remedies is required as a condition precedent to suit in the Court of Claims. Court of Claims Act §10(9).[2] What the claim is alleging is negligence, not the creation of a bailment. See Joseph v State of New York, UID # 2007-029-056, Claim Number 110061 (Mignano, J., January 9, 2008). Such a cause of action is governed by the constraints of Court of Claims Act §10(3).

To establish a prima facie case of negligence the following elements must exist: (1) that defendant owed the claimant a duty of care; (2) that defendant failed to exercise proper care in the performance of that duty; (3) that the breach of the duty was a proximate cause of claimant’s injury; and (4) that such injury was foreseeable under the circumstances by a person of ordinary prudence. Mr. Felix asserts in his claim that State correctional personnel negligently failed to complete the insurance forms as he directed, that this failure caused him to suffer a loss in the amount of $388.90, and that such loss was foreseeable. Whether he did or did not appeal any personal property claim determination is irrelevant.

Accordingly, defendant’s pre-answer motion to dismiss [M-74550], premised only on an argument that claimant failed to exhaust administrative remedies, is in all respects denied. Defendant is directed to serve and file its answer in accordance with Civil Practice Law and Rules §3211(f) and 22 NYCRR §206.7.

March 20, 2008
White Plains, New York

Judge of the Court of Claims

[1]. This grievance was appealed, with the Central Office Review Committee affirming the Superintendent’s denying the action requested, in a determination dated October 17, 2007.
[2]. Court of Claims Act §10(9) provides that an inmate in the custody of the New York State Department of Correctional Services [DOCS] who seeks damages for the alleged loss of personal property “may not” file such a claim in this court “...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.”