New York State Court of Claims

New York State Court of Claims

MCINTOSH v. THE STATE OF NEW YORK, #2009-015-149, Claim No. 116024, Motion No. M-75965


Synopsis


Pro se inmate's bailment claim was dismissed for his failure to exhaust his administrative remedies.

Case Information

UID:
2009-015-149
Claimant(s):
RYAN MCINTOSH
Claimant short name:
MCINTOSH
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
116024
Motion number(s):
M-75965
Cross-motion number(s):

Judge:
FRANCIS T. COLLINS
Claimant’s attorney:
Ryan McIntosh, Pro SeNo Appearance
Defendant’s attorney:
Honorable Andrew M. Cuomo, Attorney General
By: Paul F. Cagino, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
March 23, 2009
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Defendant moves to dismiss this bailment claim pursuant to CPLR 3211 (a) (2) and (8) for claimant's failure to exhaust his administrative remedies as required by Court of Claims Act § 10 (9). Claimant, an inmate proceeding pro se, filed a claim on October 31, 2008 for the loss of personal property which allegedly occurred during the course of his transfer from Washington Correctional Facility to Downstate Correctional Facility, and ultimately to Fishkill Correctional Facility where his property was discovered to be missing on October 7, 2008.

In support of its dismissal motion the defendant argues that the claimant failed to exhaust his administrative remedies prior to filing the instant claim involving the loss of personal property as required by Court of Claims Act § 10 (9). The administrative remedy established by DOCS (7 NYCRR part 1700) provides a two-tier system of administrative review (see 7 NYCRR 1700.3). An inmate claim form (form 1421) must be filed within five days following the discovery of the loss (7 NYCRR 1700.4 [a]) and the initial review must be completed within fifteen working days of receipt of the claim (7 NYCRR 1700.4 [b]). Thereafter, further review may be sought by appeal to the facility superintendent or his designee (see 7 NYCRR 1700.3[b]).

Defendant established that claimant failed to exhaust his administrative remedies prior to filing the instant claim. The affidavit of Angela Dixon submitted in support of the defendant's motion indicates that the initial phase of the administrative claim procedure was not completed until December 1, 2008 when the claim was disapproved. Thus, claimant failed to exhaust his administrative remedies prior to filing the instant claim on October 31, 2008. Inasmuch as the failure to comply with the exhaustion requirements of Court of Claims Act § 10 (9) is a non-waivable jurisdictional defect (Williams v State of New York, 38 AD3d 646 [2007]), the defendant's motion to dismiss the claim is granted.

Based on the foregoing, the claim is dismissed.



March 23, 2009
Saratoga Springs, New York

HON. FRANCIS T. COLLINS
Judge of the Court of Claims


The Court considered the following papers:
  1. Notice of motion dated December 4, 2008;
  2. Affirmation of Paul F. Cagino dated December 4, 2008 with exhibits.