New York State Court of Claims

New York State Court of Claims

FLEMMING v. THE STATE OF NEW YORK et. al., #2008-038-618, Claim No. 115320, Motion No. M-75197


Defendant’s motion to dismiss the claim granted in part. Bailment cause of action dismissed for failure to demonstrate that administrative remedies were exhausted. Causes of action sounding in constitutional violations not dismissed, as those were not adequately addressed in defendant’s motion

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:
ANDREW M. CUOMO, Attorney General of the State of New York
By: Paul F. Cagino, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
October 2, 2008

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant, an individual incarcerated at Upstate Correctional Facility, has filed this claim seeking $10 million for injuries allegedly sustained as a result of the actions of correction officers whom, he contends, searched his cell and took his legal papers on April 29, 2008. Defendant moves to dismiss the claim for lack of jurisdiction on the ground that claimant has not exhausted his administrative remedies; claimant opposes the motion. Court of Claims Act § 10 (9) states that “[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.” The administrative remedy for property claims established by DOCS is a two-tiered process that is set forth in 7 NYCRR § 1700.3. The inmate’s claim must be filed and then reviewed by a claims reviewer (see 7 NYCRR § 1700.3 [a]), and, if the inmate desires further review, the reviewer’s decision may be administratively appealed (see 7 NYCRR § 1700.3 [b]). The failure to comply with both steps set forth in 7 NYCRR § 1700.3 is a jurisdictional defect requiring dismissal of the claim (see Williams v State of New York, 38 AD3d 646, 647 [2d Dept 2007]); Taylor v State of New York, UID #2007-015-553, Claim No. 110325, Collins, J. [May 10, 2007]; Carranza v State of New York, UID #2007-009-002, Claim No. 111547, Motion No. M-72563, Midey, J. [Mar. 6, 2007]).

One exhibit to the filed claim is an Inmate Grievance Complaint dated May 11, 2008 (UST 35501-08), in which claimant complains of unparticularized “due process” deprivations. The other document attached to the claim is an Inmate Claim Form of the same date from which the Facility Claim Number is whited out, and in which claimant seeks reimbursement for legal paperwork that was allegedly taken.

Defendant asserts that claimant has not filed any administrative claim for an alleged loss of legal paper work on April 29, 2008, which claimant disputes. Even assuming, however, that claimant filed the Inmate Claim Form that is appended to his claim,[1] that filing would have accomplished only the initial review of the two-tiered administrative process for inmate claims for lost property (see 7 NYCRR § 1700.3 [a]). Claimant has failed to demonstrate that he took an administrative appeal pursuant to 7 NYCRR § 1700.3(b), and thus, he has not borne his burden of opposing defendant’s contention that he failed to exhaust his administrative remedies (see Ambrose v State of New York, UID # 2007-030-502, Claim No. 112792, Motion No. M-72455, Scuccimarra, J. [Jan. 10, 2007]; see also Taylor v State of New York, supra; Carranza v State of New York, supra).

The claim, however, will not be dismissed in toto. In the view of the Court, the claim is capable of being construed as stating a cause of action sounding in bailment and also various other causes of action, which are discussed by claimant in his papers and briefly addressed in the reply affirmation of the Assistant Attorney General. Inasmuch as defendant did not move to dismiss the claim on the grounds that this Court does not have jurisdiction to hear those other causes of action, the Court declines to dismiss those causes of action at this time. Accordingly, it is

ORDERED, that Motion No. M-75197 is GRANTED IN PART, and the cause of action sounding in bailment is hereby dismissed, and it is further

ORDERED, that Motion No. M-75197 is DENIED in all other respects, without prejudice.

October 2, 2008
Albany, New York

Judge of the Court of Claims

Papers considered

(1) Claim No. 115320, filed June 2, 2008;

(2) Notice of Motion, dated July 2, 2008;

(3) Affirmation of Paul F. Cagino, AAG, dated July 2, 2008 with exhibits;

(4) Affidavit of Lisa Brothers, sworn to June 20, 2008;

(5) Claimant’s “Declaration,” filed July 11, 2008, with exhibits;

(6) Reply Affirmation of Paul F. Cagino, AAG, dated July 15, 2008;

(7) Correspondence of Woodrow Flemming, dated July 23, 2008, with attachment.

[1]. The affidavit of Lisa Brothers addresses an uncompleted page of a form for a facility claim # 840-0045-08. That document was not filed as an exhibit to the claim, and is not included among the many documents claimant has appended to his opposition to the motion. In any event, that document does not demonstrate that an administrative appeal was taken and accordingly, the parties’ dispute about whether the claim number was changed is irrelevant to determination of the instant motion.