New York State Court of Claims

New York State Court of Claims

POVOSKI v. STATE OF NEW YORK, #2008-039-086, Claim No. 114004, Motion Nos. M-74671, CM-74802


Defendant’s motion to dismiss the claim for loss of personal property on jurisdictional grounds is granted. Defendant offered sufficient proof to establish that claimant failed to exhaust his administrative remedies in accordance with Court of Claims Act § 10 (9) and 7 NYCRR 1700.3

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):
James H. Ferreira
Claimant’s attorney:
Frank J. Povoski, Jr., pro se
Defendant’s attorney:
Hon. Andrew M. Cuomo
Attorney General of the State of New York
By: Paul F. CaginoAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
June 23, 2008

Official citation:

Appellate results:

See also (multicaptioned case)


On July 26, 2007, claimant filed and served a claim seeking compensation for the loss of personal property on April 24, 2007 while he was an inmate at Clinton Correctional Facility. Issue was joined, and defendant now moves the Court for an order dismissing the claim on jurisdictional grounds pursuant to Court of Claims Act § 10 (9).

Section 10 (9) provides, in relevant part, 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 personal property claims is codified at 7 NYCRR 1700.3 and provides for a “two-tier system of administrative review.” “All inmate personal property claims shall be filed with and reviewed by the deputy superintendent for administration or functional equivalent, or by a claims reviewer designated by the head of the facility” (7 NYCRR 1700.3 [a]). “If an inmate desires further review, [then] the appeal shall be made to, reviewed and decided by the facility superintendent or designee . . . [or] forwarded to central office” depending on the value of the claim (7 NYCRR 1700.3 [b]). The administrative regulation further provides that “[n]o further administrative review is available after appeal [and] [t]he remaining option is for the inmate to pursue the claim in the Court of Claims” (7 NYCRR 1700.3 [b] [4]). The failure to comply with the jurisdictional filing requirements of 7 NYCRR 1700.3 necessitates dismissal of the claim (see Williams v State of New York, 38 AD3d 646, 647 [2007]).

Here, defendant contends that the claim is premature as it was served and filed prior to exhaustion of claimant’s administrative remedies. In support of its motion, defendant offers a copy of the facility’s administrative review form which establishes that the claim was initially disapproved on August 6, 2007, and that claimant appealed the facility’s initial review on August 7, 2007. In opposition to the motion, claimant contends that he appealed the facility’s initial review on July 21, 2007 and submitted an amended appeal on August 7, 2007. In support of his position, claimant offers a letter dated July 21, 2007 wherein he “formally advis[es]” the facility of his appeal. However, following a review of the letter, it is unclear whether claimant was seeking an appeal of the facility’s initial review or an initial determination. Notably, the letter predates the facility’s initial review.

Based upon the foregoing proof, the Court finds that claimant failed to exhaust his administrative remedies, in accordance with Court of Claims Act § 10 (9) and 7 NYCRR 1700.3, when he filed and served his claim on July 26, 2007, which was prior to a determination of his administrative appeal.

Accordingly, it is hereby

ORDERED that M-74671 is granted and the claim is dismissed; and it is further

ORDERED that CM-74802 is denied.

June 23, 2008
Albany, New York

Judge of the Court of Claims

Papers Considered
  1. Notice of Motion to Dismiss dated March 11, 2008;
  2. Affirmation in Support of Motion to Dismiss by Paul F. Cagino, AAG, sworn to on March 11, 2008 with exhibits;
  3. Notice of Cross-Motion in Defense of Motion to Dismiss dated April 3, 2008; and
  4. Affidavit in Support of Cross-Motion by Frank J. Povoski, Jr., sworn to on April 8, 2008 with exhibits.