New York State Court of Claims

New York State Court of Claims

Carney v. STATE OF NEW YORK, #2009-019-052, Claim No. 117007, Motion No. M-77011


Synopsis


Claim dismissed. Claimant failed to comply with timely filing requirements. Late claim relief is not available pursuant to Court of Claims Act § 10(9).

Case Information

UID:
2009-019-052
Claimant(s):
CRESTON CARNEY
Claimant short name:
Carney
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
117007
Motion number(s):
M-77011
Cross-motion number(s):

Judge:
DIANE L. FITZPATRICK
Claimant’s attorney:
CRESTON CARNEYPro Se
Defendant’s attorney:
ANDREW M. CUOMO
Attorney General of the State of New York
By: Bonnie Gail Levy, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
October 26, 2009
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

Defendant brings a motion to dismiss the claim. Claimant opposes the motion and makes


a request for permission to file a late claim.

The claim seeks damages for lost property which Claimant, an inmate, allegedly secured in his large locker at Cape Vincent Correctional Facility before he went into protective custody on September 20, 2008. The claim was filed on June 17, 2009 and served on the Attorney General by certified mail, return receipt requested on June 19, 2009. Prior to this, claimant served two different “Notice[s] of Intention to file a Claim” on the Attorney General, one on December 27, 2008, and one on February 7, 2009 (see Defendant’s exhibits M and N).

Claimant filed an institutional lost property claim form with Cape Vincent on July 21, 2008 and September 23, 2008,[1] which were disapproved on September 29, 2008. Claimant appealed the decision and the appeal was denied on October 15, 2008.

Defendant argues that the claim must be dismissed for untimeliness as it was not filed and served within 120 days of the date claimant exhausted his remedies on his institutional claim. Court of Claims Act § 10 (9) provides:
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 twenty days after the date on which the inmate has exhausted such remedy.


There is no provision in the statute authorizing an extension of time to file the claim by service of

a Notice of Intention. Therefore, Claimant’s Notices of Intention to file a claim timely served on December 27, 2008[2] and February 7, 2009 were nullities (see Cepeda v State of New York, Ct Cl, Midey, Jr., J., October 22, 2001, Cl. No. 104717, Motion No. M-64015 [UID # 2001-009-049][3]

Claimant’s claim filed and served well beyond the 120 days from the date his administrative appeal was denied is therefore untimely.

Despite Claimant’s pleas to excuse any irregularities in service or documents because he is a layperson unfamiliar with the law, the Court is bound by the constraints of its jurisdiction. Failure to comply with the timely filing requirements in the Court of Claims Act deprives this Court of the authority to hear and consider this claim and mandates dismissal (Buckles v State of New York, 221 NY 418). Moreover, late claim relief, even if properly requested, is not available on a claim pursuant to Court of Claims Act § 10 (9) (see Roberts v State of New York, 11 AD3d 1000).

Accordingly, Defendant’s motion is granted and the claim is DISMISSED.


October 26, 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 Bonnie Gail Levy, Esquire, Assistant Attorney General, in support,

with exhibits attached thereto.

3. Unsworn letter of Creston Carney, Claimant, dated July 26, 2009.

4. Unsworn letter of Creston Carney, Claimant, dated August 5, 2009.



[1].The Court notes that the institutional property claim forms are dated before Claimant allegedly lost his property on September 20, 2008(see Defendant’s Exhibit C).
[2].This Notice of Intention does not comply with Court of Claims Act § 11 (b).
[3].It is for this reason relief under Court of Claims Act § 10 (8) is not available (see Pristell v State of New York, Lebous, J., July 15, 2005, Cl. No. None, Motion No. M-70283 [UID # 2005-019-547]; Glosler v State of New York, Ct Cl, McNamara, J., June 5, 2002, Claim No. 103662, Motion No. M-64877 [UID # 2002-011-550]).