New York State Court of Claims

New York State Court of Claims

DESMARAT v. THE STATE OF NEW YORK, #2009-030-535, Claim No. 115579, Motion Nos. M-76553, CM-76624


Cross-motion to dismiss bailment claim as untimely granted. Claimant did not oppose cross-motion by submitting proof of alleged attempt to timely serve claim after exhaustion of administrative remedies (referred to in other motion practice). Motion for discovery by claimant denied as overbroad. Material sought would not have assisted in opposing dismissal motion.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):
Claimant’s attorney:
Defendant’s attorney:
Third-party defendant’s attorney:

Signature date:
May 21, 2009
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers were read and considered on claimant’s motion for discovery [M-

76553] and defendant’s cross-motion [CM-76624] to dismiss the claim:

1,2 Notice of Motion Requiring Defendant to Produce Documents for Inspection; Affidavit in Support of Motion by Jean Marc Desmarat, Claimant

3,4 Notice of Cross-Motion to Dismiss; Affirmation by Elyse J. Angelico, Assistant Attorney General and attached exhibits

5-7 Filed papers: Claim, Answer, Desmarat v State of New York, Claim No. 115579, M-75915 (Scuccimarra, J., February 3, 2009)

Claimant alleges various deprivations occurring during his transport from one correctional facility to another on or about December 13, 2007, including a loss of his personal property. This claim was filed on July 24, 2008 and apparently served on the defendant on October 9, 2008, as acknowledged in its answer. In its answer, in addition to a general denial, defendant asserts one affirmative defense as follows:
“The claim for the loss of personal property is not timely under Court of Claims Act 10(9) in that it was not served and filed within 120 days of March 11, 2008, the date that claimant exhausted his available administrative remedies.”

In prior motion practice claimant’s motion to strike this affirmative defense was denied. [See Desmarat v State of New York, Claim No. 115579, Motion No. M-75915 (Scuccimarra, J., February 3, 2009)].
The cross-motion to dismiss is addressed first because it disposes of the matter. No opposition to the cross-motion has been submitted by claimant. As noted above, the claim was served on the Office of the Attorney General on October 9, 2008. Claimant exhausted his administrative remedies with regard to the bailment claim on March 11, 2008. Thus the present claim asserting such a cause of action would have to have been served and filed within 120 days of such exhaustion, or by July 9, 2008. See Court of Claims Act §10(9).

Court of Claims Act §10(9)[1] requires that a claim alleging loss of personal property be served and filed within 120 days of exhaustion of a claimant’s personal property claims administrative remedy. Such remedy is codified at 7 NYCRR Part 1700 and is generally deemed exhausted once the initial review and appeal determination is made.

Court of Claims Act §11(a) provides that a claim must be served personally or by certified mail, return receipt requested, upon the attorney general within the times prescribed in Court of Claims Act §10; and that service is complete when it is received in the Attorney General’s Office. Court of Claims Act §11(a)(i).

In connection with claimant’s earlier motion to strike the defense Mr. Desmarat indicated that he had tried to mail his claim earlier, on April 30, 2008, but had been prevented from doing so because of errors in the correctional facility’s mail room. He did not, however, provide any proof of such request then, nor has he provided any proof now, in order for the court to consider whether some misfeasance in the facility prevented the timely forwarding of claimant’s mail, allowing the court to consider whether an estoppel should apply. See Wattley v State of New York, 146 Misc 2d 968 (Ct Cl 1990)[2]; cf. Rivera v State of New York, 5 AD3d 881 (3d Dept 2004).[3]

Such proof might include his portion of a facility disbursement request form, for example. The only disbursement request forms furnished during the earlier motion practice refer to a mailing to this court on or about April 30, 2008, and another signed by claimant on July 30, 2008 requesting mailing to the Attorney General’s Office. As noted in the earlier Decision and Order of the court, even assuming that the July 30, 2008 disbursement request form for service upon the Attorney General’s Office refers to the claim, July 30, 2008 is more than 120 days after claimant exhausted his administrative remedy.

No other justiciable causes of action are asserted in claim. Moreover, for the most part, any claim asserting a cause of action for negligence or an intentional tort cause of action such as assault, would have to have been served and filed within ninety (90) days of accrual. This is mentioned because claimant includes assertions that he was wrongfully shackled, was not given food or water, and kept on the bus for what should have been a three (3) hour trip for nine (9) hours, among other deprivations. The latest date mentioned in the claim as an accrual date for causes of action other than a bailment is December 13, 2007. The time provisions of Court of Claims Act §§10 (2), (3), (3-a), (3-b) and (4), all allow for service of a notice of intention to file a claim within the time constraints for serving and filing a claim, as a means of extending the time that a claim may be later served and filed. There is no indication that a notice of intention to file a claim was timely and properly served on the Attorney General’s Office to preserve causes of action other than in bailment, such as they are.

Accordingly, defendant’s cross-motion to dismiss is granted, and Claim Number 115579 is in all respects dismissed.

Denied. The court notes that the requests are overbroad in any event. It is also noted that such discovery requests would not have yielded the information claimant might have found necessary to oppose the motion to dismiss, and that such information would be obtainable directly from the facility pursuant to a FOIL [Freedom of Information Law] request. [See generally, Public Officers Law Article 6]. Additionally, claimant has not asserted that he does not have necessary information, because he has not opposed the motion.

Based on the foregoing, claimant’s motion is denied and defendant’s cross-motion is granted, and claim number 115579 is in all respects dismissed.

May 21, 2009
White Plains, New York

Judge of the Court of Claims

[1].“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.” Court of Claims Act §10(9).
[2]. Court denied defendant’s motion to dismiss for improper service. Claimant said he had attached the disbursement form for certified mail to his claim, but it apparently fell off, and additionally presented evidence that his inmate account was debited for the cost of certified mail, return receipt requested service. “Absent sufficient rebuttal (see Cole v State of New York, 64 AD2d 1023, 1024), we find the circumstances call for the invocation of equitable estoppel to prevent defendant from being rewarded for its own apparent breach of duty . . . (citation omitted).” Wattley v State of New York, supra, at 969. Additionally, the facility had an additional obstacle to getting proof of service in place, in that an inmate would only receive a receipt indicating that the special mailing request had been approved and processed, without any initial documentation that the mail was delivered to the facility mail room.

[3]. Claimant argued that he was entitled to invoke the doctrine of equitable estoppel because of the facility mail room’s delay in processing his legal mail which resulted in the notice of intention being untimely filed. There is no mention of the manner of service. The appellate division determined that “. . . claimant . . . failed to demonstrate that the mail room delay arose out of any omissions or malfeasance on the part of the facility’s mail room personnel
. . . [A] review of the record reveals that the mail room personnel followed proper procedures in processing claimant’s legal mail.”