Inmate lost property claim was dismissed as untimely.
|Claimant short name:||ROLLING|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||Alan C. Marin|
|Claimant's attorney:||Norvell Rolling, Pro Se|
|Defendant's attorney:||Andrew M. Cuomo, Attorney General
By: Roberto Barbosa, AAG
|Third-party defendant's attorney:|
|Signature date:||August 14, 2009|
|See also (multicaptioned case)|
Defendant moves to dismiss the claim of Norvell Rolling on the ground that it was untimely served and filed. In his claim, Mr. Rolling alleges that when he was taken out on a medical trip from Sullivan Correctional Facility, he left certain items of personal property in a "net bag" for safekeeping at the instruction of a correction officer. When claimant returned that evening, the bag was missing; he values the contents at $172.25.
Section 10.9 of the Court of Claims Act provides that a claim for lost property by an inmate must be served and filed within 120 days after the exhaustion of internal administrative remedies.
It is undisputed by the parties that Rolling exhausted his administrative remedies on November 7, 2008. See ¶5 of the May 8, 2009 affirmation of Roberto Barbosa with exhibit B thereto, and ¶6 of claimant's opposition papers filed on June 3, 2009. Rolling's deadline for filing and serving his claim was thus March 9, 2009.(1)
Inasmuch as claimant did not serve and file claim no. 116732 until April 17, 2009, he failed to comply with §10 of the Act, and such claim is thus jurisdictionally defective.(2) See, e.g., Mallory v State of New York, 196 AD2d 925 (3d Dept 1993) and James v State of New York, Ct Cl, August 26, 2008 (unreported, claim no. 115004, motion no. M-74888, UID #2008-018-632(3) , Fitzpatrick, J.).
Accordingly, having reviewed the submissions(4) , IT IS ORDERED that motion no. M-76664 be granted and that claim no. 116732 be dismissed.
August 14, 2009
New York, New York
Alan C. Marin
Judge of the Court of Claims
1. See General Construction Law §25-a.
2. Rolling had made an earlier submission received by the Clerk's Office on March 5, 2009, which consisted of a copy of his New York State Department of Correctional Services Inmate Claim Form.
3. This and other decisions of the Court of Claims may be found on the Court's website: www.nyscourtofclaims.state.ny.us.
4. The following were reviewed: defendant's notice of motion with affirmation in support and exhibits A through D; and "Claimant's Answer to Defendant's Opposition to Claim" with undesignated exhibits, filed June 3, 2009.