New York State Court of Claims

New York State Court of Claims

ROESCH v. THE STATE OF NEW YORK, #2008-031-053, Claim No. 115191, Motion No. M-75076


Synopsis


Exhaustion of remedies is measured from date inmate receives notification that his claim has been denied, not date denial is issued. Claim for lost property is not untimely. Defendant’s motion to dismiss the claim is denied

Case Information

UID:
2008-031-053
Claimant(s):
JOSEPH ROESCH
Claimant short name:
ROESCH
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
115191
Motion number(s):
M-75076
Cross-motion number(s):

Judge:
RENÉE FORGENSI MINARIK
Claimant’s attorney:
JOSEPH ROESCH, PRO SE
Defendant’s attorney:
HON. ANDREW M. CUOMO
New York State Attorney General
BY: BONNIE GAIL LEVY, ESQ.Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
September 29, 2008
City:
Rochester
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)

.
Decision

The following papers were read on motion by Defendant for dismissal of the claim:
1) Notice of Motion, filed June 9, 2008;
2) Affirmation of Bonnie Gail Levy, Esq., dated June 5, 2008, with attached exhibits;
3) Claimant’s unsworn response papers, filed July 10, 2008, with attached exhibits;
  1. Filed Documents: Claim. This is Defendant’s motion, filed in lieu of an answer, for dismissal of the claim as untimely. In his underlying claim, filed on April 30, 2008, Mr. Roesch alleges a cause of action for negligence relating to Defendant’s loss of certain items of his personal property.
Defendant correctly points out that, in actions related to an inmate’s claim for the loss or destruction of personal property, Court of Claims Act (“CCA”) § 10(9) requires that the claim be filed within 120 days of exhaustion of Claimant’s administrative remedies. Defendant asserts that the decision denying Claimant’s appeal was issued on November 19, 2007. Claimant’s filing of his claim on April 30, 2008 was, of course, more than 120 days after November 19, 2007. Therefore, Defendant asserts that the claim should be dismissed.

However, at least for the purposes of this motion, Defendant has conceded that Claimant did not receive notice that his appeal had been denied until January 10, 2008. Neither party has offered an explanation for the almost two months between the issuance and Claimant’s receipt of the decision. However, I note that in Blanche v State of New York (17 AD3d 1069), the Appellate Division, Fourth Department, determined that, for purposes of measuring the 120 day requirement, it is the date of receipt of the decision by Claimant and not the date of issuance that is controlling. Accordingly, I find that the claim is timely.

For the reasons set forth above, it is hereby

ORDERED, that Defendant’s motion for dismissal of the claim is denied.

September 29, 2008
Rochester, New York

HON. RENÉE FORGENSI MINARIK
Judge of the Court of Claims