Defendant brings a pre-answer motion to dismiss the claim for failure to comply
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). Claimant opposes the
motion; however, his opposition fails to respond to Defendant’s issue of
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
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.