New York State Court of Claims

New York State Court of Claims

FIGUEROA v. THE STATE OF NEW YORK, #2008-030-546, Claim No. 113466, Motion No. M-75099


Defendant’s motion to dismiss directed at a different claim than the one at issue denied in this inmate bailment claim. Motion defendant served in 2006 seemingly in response to a notice of intention claimant served on defendant at the time could not be considered with regard to this claim served and filed on February 26, 2007, commenced after claimant exhausted his administrative remedies. Not only is the 2006 motion not referable to this 2007 claim, if it were to be considered (somehow) it is untimely since it is served more than 40 days after the claim was served on defendant, and the grounds raised are inapposite in fact and law.

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:
August 6, 2008
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers were read and considered on defendant’s motion to dismiss:

1,2 Notice of Motion; Affirmation by Mary B. Kavaney, Assistant Attorney General dated December 15, 2006 and attached exhibits

  1. Response by Hector Figueroa, Claimant, filed June 23, 2008 and attached exhibits
  1. Letter to Court by Barry Kaufman, Assistant Attorney General, dated May 9, 2008, (re-submitting Motion to Dismiss dated December 15, 2006)
  1. Letter to Court by Hector Figueroa, Claimant, dated May 6, 2008
  1. Historic Correspondence: Letter to Court by Mary B. Kavaney, Assistant Attorney General, dated December 15, 2006 (enclosing December 2006 motion to dismiss); Letter to Court by Mary B. Kavaney, Assistant Attorney General dated January 12, 2007 (re-submitting the December 2006 Motion to Dismiss); Letter to Claimant from the Clerk’s office dated January 23, 2007 (returning Claimant’s response papers because no claim filed in Court)
  1. Filed paper: Claim No. 113466 filed March 19, 2007
Claimant alleges that defendant’s agents at Green Haven Correctional Facility (hereafter Green Haven) and/or Downstate Correctional Facility (hereafter Downstate) negligently lost his personal property during his movement for a court appearance in June 2006, when they gave his property to an inmate with the same last name, Jamie Figueroa. [Claim No. 113466 filed March 19, 2007]. When he arrived at a New York City jail facility he noticed that his property bag was missing, and began the process of trying to ascertain where in the process his property may have been mislaid. [Id.¶ ¶12, 13, 14, 15]. He wrote to Downstate, receiving no response. [Id. ¶13, 14, 15, Exhibit B]. He was transported back to Green Haven in October 2006, stopping again at Downstate on the way there. [Id. ¶¶16, 17].

On November 1, 2006 he received a copy of the original I-64 form that the correction officer had completed when claimant was packed up for his initial court appearance in June 2006. [Id. ¶18; Exhibit A]. It was then he first became aware that his bag had been given to a different inmate. [Id. ¶18]. He submitted a facility personal property claims form on November 3, 2006. [Id. ¶20, Exhibit C].

On January 12, 2007 his appeal to the superintendent was disapproved. [See id.¶ 21, Exhibit C].

According to an affidavit of service attached to the claim filed in this court, the present claim was served on the Attorney General’s Office on or about February 24, 2007 by certified mail, return receipt requested. [Id.]. The claim was filed in the Office of the Chief Clerk of the Court of Claims on March 19, 2007, and a letter acknowledging such filing was sent to claimant on March 28, 2007.

Interspersed with the foregoing, some procedural mysteries occurred. For example, claimant served a notice of intention to file a claim upon the Attorney General’s Office by certified mail, return receipt requested on or about November 22, 2006. [Id.¶22 Exhibit D]. It seems that in reaction to receipt of this document, as well as attachments to the institutional claim Mr. Figueroa appears to have simultaneously served upon the defendant with the notice of intention, the Attorney General’s Office responded with a motion to dismiss the claim, dated December 20, 2006, utilizing an incorrect claim number. This 2006 motion to dismiss recites that Mr. Figueroa had not exhausted his administrative remedies, and that the notice of intention was untimely[1] filed premised upon awareness of a loss of property in June 2006. Because an incorrect claim number was written on this motion, it was not calendared by the clerk’s office.

Thereafter, defendant re-submitted the same motion to dismiss on January 12, 2007 asking the court to disregard the original submission of December 15, 2006, because it had an “incorrect claim number.” The motion was again not calendared, because no claim had been filed in the Court of Claims. When Mr. Figueroa responded to the motion to dismiss, his papers were returned on January 23, 2007 because there was no claim of record, and the State’s papers were returned as well. The January 23, 2007 letter to the claimant from the Clerk’s Office also indicated that the defendant’s motion papers were being sent back because there was no claim filed.

In any event, as of January 23, 2007, the present claim had neither been served upon the Attorney General’s Office, or filed in the Office of the Chief Clerk of the Court of Claims. As noted above, claimant’s administrative remedy [see 7 NYCRR Part 1700] appears to have been exhausted on or about January 12, 2007. This claim was served in February 2007 and filed in March 2007. No answer, or motion to dismiss in lieu of an answer, was served within forty (40) days of the service of the claim.

On May 6, 2008, Mr. Figueroa wrote to the Clerk of the Court to inquire as to whether the Court had received any response from defendant to the claim he had filed on March 19, 2007, and asking when his claim might be heard. By letter dated May 9, 2008, the defendant wrote to the Clerk of the Court acknowledging that the defendant had received Mr. Figueroa’s May 6, 2008 letter, and characterizing Mr. Figueroa’s letter as claimant’s indication that he had not received the motion to dismiss filed on December 15, 2006 and resubmitted on January 12, 2007. The defendant then enclosed another copy of the December 2006 motion and affirmation, and sent same to the claimant.[2]

The 2006 motion submitted with the defendant’s May 9, 2008 correspondence has been calendared by the Chief Clerk’s Office, and duly responded to by claimant with some of the confusion consideration of such motion merits.

Court of Claims Act §10(9) provides: “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 administrative remedy referred to is codified at 7 NYCRR Part 1700, and is generally deemed exhausted once the initial review and appeal determination is made.

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 serve the claim as required results in a lack of 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).[3]

The claim herein was timely served on or about February 26, 2007 by the proper means within 120 days of exhaustion of claimant’s administrative remedies according to an unchallenged affidavit of service filed with the claim. Any answer or motion to dismiss should have been served and filed within forty (40) days of service of the claim. 22 NYCRR §206.7; Civil Practice Law and Rules §3211(f).

The motion that has again been “re-submitted” is entirely irrelevant to the claim served and filed herein. Even if the motion could somehow be considered with reference to the claim that has been served upon defendant and filed in the court, it is untimely, the grounds raised are inapposite in fact and law, and such may not be utilized to avoid defendant’s delinquency in either timely answering the claim or moving to dismiss on reasonable grounds. Indeed, any issues that might have been raised in such answer or motion are likely waived, including any assertion that the court lacks personal jurisdiction, or that the claim was untimely. See Court of Claims Act §11(c); see also Civil Practice Law and Rules §3215.

Accordingly, defendant’s motion to dismiss [M-75099] is in all respects DENIED.

August 6, 2008
White Plains, New York

Judge of the Court of Claims

[1]. When the cause of action asserted in a claim is for bailment, the more restricted provisions concerning when a claim must be filed apply and, just as late claim relief is not available, no notice of intention is authorized in any event to extend the time period within which a claim must be served and filed. See Court of Claims Act §§10(6) and 10(9).
[2]. The letter from defendant to the Chief Clerk recites: “I am in receipt of a copy of claimant’s May 6, 2008 letter to you indicating that he has not received our Notice of Motion and Affirmation in this matter, which was submitted on December 15, 2006. My office re-submitted the same motion to you on January 12, 2007 because the first submission had an incorrect claim number on it. I have enclosed a copy of the Notice of Motion and Affirmation, together with a copy of the January 12, 2007 letter. I have also sent claimant a copy of the Notice of Motion and Affirmation and the letter.”
[3]. “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) 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.”