Claimant, an inmate proceeding pro se, alleges that defendant State of New York
(defendant) negligently lost certain personal property belonging to him when he
was transferred from Elmira Correctional Facility (Elmira) to Green Haven
Correctional Facility (Green Haven) in March 2007. In lieu of answering,
defendant moves to dismiss on the grounds of improper and untimely
Claimant has submitted a letter
dated April 18, 2008 “in lieu of a formal memorandum of law.” In
that letter, claimant also requests an extension of time in which to
“counter these affirmative defenses” – noting that “the
evidence sought to defeat a default lies in the internal operation of the
Department of Correctional Services . . . at Green Haven record access officer,
and requires a sufficient amount of time to ascertain these records in its
stead.” The Court finds no basis for an adjournment, and claimant’s
request is denied. The Court will now address the motion on the merits.
Pursuant to Court of Claims Act § 10 (9), claimant was required to serve
and file a claim within 120 days after exhaustion of his personal property claim
administrative remedy. Claimant alleges that he filed an inmate claim on August
18, 2007 which was denied on October 10, 2007. Claimant alleges that he
appealed the denial on October 11, 2007, and the appeal was denied on October
Defendant argues that because
claimant’s administrative appeal was denied on October 15, 2007, this
claim filed on March 21, 2008 and served on March 20, 2008 is
In this claim, claimant requests $1,400 for the value of his property.
Claimant does not provide any further description of the property, but has
attached the first page of three different inmate claim forms. Claimant also
attached correspondence from various officials at Elmira, Green Haven and Great
Meadow Correctional Facility, as well as a portion of a grievance he filed, all
of which concern the missing personal property. However, rather than clarifying
this matter, these attachments have created additional confusion.
An inmate claim dated August 15, 2007 (the first inmate claim) seeks recovery
for the loss of four draft bags of property ($1,410), and a K.T.V.
The inmate claim dated October 5, 2007
(080-9913-07) (the second inmate claim) seeks recovery for a Casio CTK - 900
keyboard ($140.93) and an AC adapter ($12.97).
A third inmate claim which is dated January 14, 2008 (the third inmate claim)
seeks recovery for two draft bags of property ($500), one K.T.V. ($90), and one
Casio keyboard ($200).
Although the amount claimed in the first inmate claim ($1,410) for the four
draft bags is extremely close to the value sought in this claim ($1,400), the
dates alleged as the inmate claim decision and the appeal decision coincide with
the determination dates of the second inmate claim. Accordingly, it is unclear
which inmate claim actually forms the basis for the relief sought in this claim.
Further, neither claimant nor defendant has submitted complete copies of the
inmate claims, and it is therefore impossible for the Court to determine whether
or when claimant exhausted his administrative remedies. Based upon the
allegations in Claim No. 115005 and the attachments thereto, the Court cannot
determine whether this claim has been timely filed or served. Because defendant
has not established untimeliness on this motion, dismissal on that basis is not
However, Court of Claims Act § 11 (a) requires that service on the
Attorney General's office be made either personally, or by certified mail,
return receipt requested. Defendant argues that claimant’s failure to
serve the claim by certified mail, return receipt requested, renders this Court
without jurisdiction. The envelope addressed to the Attorney General
(postmarked March 18, 2008) and submitted as an exhibit to defendant’s
motion, contains postage of $1.99, which is clearly insufficient for certified
mail, return receipt requested.
Claimant’s failure to comply with the statutory certified mail
requirement mandates dismissal, as the Court has no subject matter jurisdiction
(see Finnerty v New York State Thruway Auth., 75 NY2d 721 ).
Consequently, defendant’s Motion No. M-74822 is granted and Claim No.
115005 is hereby dismissed.
1) Notice of Motion filed on April 16, 2008; Affirmation of Roberto Barbosa,
Assistant Attorney General, dated April 14, 2008, and attached Exhibit A.
2) Claimant’s letter to the Clerk of the Court dated April 18,
Filed papers: Claim filed on March 21, 2008.