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
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
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).
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
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