New York State Court of Claims

New York State Court of Claims

McQUILKIN v. STATE OF NEW YORK, #2009-018-016, Claim No. 116009, Motion No. M-75937


Synopsis


Defendant brings a pre-answer motion to dismiss for failure to comply with Court of Claims Act § 10(9). While there is a letter dated May 30, 2008 to Claimant indicating that the determination on his appeal was denied; there is nothing indicating that the letter was mailed to Claimant or that he received a copy of it. Defendant’s motion is denied.

Case Information

UID:
2009-018-016
Claimant(s):
RUDOLPH McQUILKIN
Claimant short name:
McQUILKIN
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
116009
Motion number(s):
M-75937
Cross-motion number(s):

Judge:
DIANE L. FITZPATRICK
Claimant’s attorney:
RUDOLPH McQUILKINPro Se
Defendant’s attorney:
ANDREW M. CUOMO
Attorney General of the State of New York
By: Thomas Trace, EsquireSenior Attorney
Third-party defendant’s attorney:

Signature date:
March 18, 2009
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Defendant brings a pre-answer motion to dismiss the claim for failure to comply with

Court of Claims Act § 10(9). The claim seeks damages for the loss of personal property while Claimant was an inmate, and it combines two separate facility lost property claims (Nos. 020-0329-07, the first claim, and 020-0010-08, the second claim). The first claim is dated February 4, 2008, and seeks $514.69 for Claimant’s lost property which was disapproved on July 8, 2008, and appealed on July 10, 2008. The appeal review was disapproved on July 29, 2008. The second claim is dated March 28, 2008, and seeks damages of $1,020.40 for lost property. This claim was denied on April 28, 2008. Claimant appealed the determination on April 30, 2008. The appeal was disapproved on May 30, 2008, by letter from Karen A. Loeb, Institution Steward, addressed to Claimant advising that his appeal was disapproved because the Department of Correctional Services (hereinafter DOCS) was not found negligent.

Defendant argues, by this motion, that the second claim was not served within 120 days of the exhaustion of administrative remedies established by DOCS and is therefore untimely (Court of Claims Act § 10[9]). Claimant opposes the motion; however, his opposition fails to respond to Defendant’s issue of untimeliness.

Court of Claims Act § 10(9) requires 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. Such claim must be filed and served within

one hundred and twenty days after the date on which the

inmate has exhausted such remedy.


The New York State Codes Rules and Regulations indicates that DOCS has established a two-tier system of administrative review for the loss of inmates’ personal property which consists of an initial review and an appeal (7 NYCRR §1700.3).

The 120-day time for Court of Claims Act § 10(9) begins to run upon Claimant’s receipt of the determination on his appeal (Blanche v State of New York, 17 AD3d 1069). The letter dated May 30, 2008, from Karen A. Loeb, the Institution Steward, advised Claimant of the determination on his appeal. It appears that a copy of this letter was received by the superintendent of the facility at which Claimant was being housed on June 3, 2008 (see Defendant’s Exhibit D). There is no indication when Claimant actually received notice of the determination of his appeal on the second claim.

It is Defendant’s burden on this motion to establish that Claimant failed to exhaust his administrative remedies (see Boyd v State of New York, Ct Cl, Scuccimarra, J., signed October 4, 2004, Claim No. 105924 [UID # 2004-030-033]). Although there is a letter dated May 30, 2008 to Claimant indicating that the determination on his appeal was denied, there is nothing indicating that the letter was mailed to Claimant or that he received a copy of it. Since the 120 days are calculated based upon Claimant’s receipt, the Court cannot agree with Defendant’s position that the 120 days runs from May 30, 2008, and Claimant’s claim is 21 days late (cf. Vasquez v City of New York, 5 AD3d 672 [where CPLR 3126 time frame runs from actual receipt, motion to dismiss was denied without proof of receipt]). The Court cannot presume that the notice was received, without some proof that the letter was mailed and not returned undeliverable (cf. Badio v Liberty Mut. Fire Ins. Co., 12 AD3d 229, 230; Pardo v Central Coop. Ins. Co., 223 AD2d 832, 833 [presumption of receipt permitted where there was proof of insurer’s practice for proper mailing was followed]).

Defendant’s motion is DENIED.


March 18, 2009
Syracuse, New York

HON. DIANE L. FITZPATRICK
Judge of the Court of Claims


The Court has considered the following documents in deciding this motion:

1. Notice of Motion.

2. Affirmation of Thomas Trace, Esquire, Senior Attorney, in support, with exhibits attached.

3. Unsworn “Motion in Response to A.G.” by Rudolph McQuilkin, filed January 5, 2009.