Motion to dismiss bailment claim was denied. Claimant exhausted his administrative remedies.
|Claimant short name:||KEARNS|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :||The caption is amended sua sponte to reflect the only properly named defendant.|
|Judge:||FRANCIS T. COLLINS|
|Claimant's attorney:||Jeff Kearns, Pro Se
|Defendant's attorney:||Honorable Andrew M. Cuomo, Attorney General
By: Paul F. Cagino, Esquire
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||October 5, 2009|
|See also (multicaptioned case)|
Defendant moves for dismissal of the instant bailment claim pursuant to CPLR 3211 (a) (2) and (8) on the grounds that the claimant failed to exhaust available administrative remedies as required by Court of Claims Act § 10 (9) and failed to file the claim as prescribed by Court of Claims Act § 11 (a) (i).
Claimant seeks damages for the loss of personal property during the course of his transfer from Washington Correctional Facility to a special housing unit, presumably at Mohawk Correctional Facility where the claimant resided on the date he verified his claim. In support of its dismissal motion defendant submits affidavits from Anne Marie Nitsche, a Keyboard Specialist at Washington Correctional Facility, and Judy Palmer, the Inmate Records Coordinator at Mohawk Correctional Facility. The affidavit of Ms. Nitsche states in pertinent part the following:
"3. . . .I have personally reviewed our records, which show that inmate Jeff Kearns . . . filed the attached inmate property claim #650-0126-08 in connection with the transfer of his property on March 19, 2009.
4. That property claim was disapproved on April 27, 2009.
5. Our records show that inmate Kearns did not file any administrative appeal in connection with that inmate property claim" (affidavit of Anne Marie Nitsche, ¶¶ 3 - 5)."
The affidavit of Judy Palmer indicates that she reviewed the inmate records at Mohawk Correctional Facility and found no inmate property claims filed by the claimant, Jeff Kearns.
Addressing first the defendant's contention that the instant claim was not filed, review of the Court's file indicates that the claim was indeed filed on July 13, 2009. Moreover, attached to the claim is a copy of the Inmate Claim Form relating to inmate property claim #650-0126-08 . This Inmate Claim Form reflects that the administrative claim was initially denied on April 27, 2009 and that the denial was affirmed on appeal by R. Benish, Acting DSA, on May 14, 2009.
The administrative remedy established by the Department of Correctional Services ("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 discovery of the loss (7 NYCRR 1700.4[a]) and the initial review must be completed within 15 working days of receipt of the claim by the reviewer (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]). Here, the Inmate Claim Form attached to the claim established that claimant exhausted his administrative remedy prior to filing the claim as required by Court of Claims Act § 10 (9).
Accordingly, defendant's motion is denied.
October 5, 2009
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims
The Court considered the following papers: