New York State Court of Claims

New York State Court of Claims

McKINLEY v. THE STATE OF NEW YORK, #2009-038-502, Claim No. 115638, Motion No. M-75597


Synopsis


Inmate’s bailment claim dismissed for failure to exhaust administrative remedies (Ct Cl Act § 10[9]).

Case Information

UID:
2009-038-502
Claimant(s):
SINCERE McKINLEY
Claimant short name:
McKINLEY
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
115638
Motion number(s):
M-75597
Cross-motion number(s):

Judge:
W. BROOKS DeBOW
Claimant’s attorney:
SINCERE McKINLEY, Pro se
Defendant’s attorney:
ANDREW M. CUOMO, Attorney General of the State of New York
By: Michael Rizzo, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
January 8, 2009
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant, an individual incarcerated in a State correctional facility, filed this claim seeking damages for personal property that was allegedly lost or damaged on or about May 23, 2008 concomitant to his transfer from Upstate Correctional Facility to Clinton Correctional Facility. Defendant moves to dismiss the claim upon claimant’s failure to exhaust his administrative remedies. Claimant has not filed opposition to the motion. Court of Claims Act § 10 (9) states 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.” The administrative remedy for property claims established by DOCS is a two-step process that is set forth in 7 NYCRR § 1700.3. The inmate’s claim must be filed and then reviewed by a claims reviewer (see 7 NYCRR § 1700.3 [a]), and, if the inmate desires further review, the reviewer’s decision may be administratively appealed (see 7 NYCRR § 1700.3 [b]). The failure to comply with both steps set forth in 7 NYCRR § 1700.3 is a jurisdictional defect requiring dismissal of the claim (see Williams v State of New York, 38 AD3d 646, 647 [2d Dept 2007]); Flemming v State of New York, UID #2008-038-618, Claim No. 115320, Motion No. M-75197, DeBow, J. [Oct. 2, 2008]; Durham v Upstate Corrections Officers, UID #2007-038-572, Claim No. 114009, Motion No. M-73932, DeBow, J. [Nov. 27, 2007]; Taylor v State of New York, UID #2007-015-553, Claim No. 110325, Collins, J. [May 10, 2007]).

Defendant’s submission includes the affidavit of Nancy Pulsifer, a clerical employee in the Steward’s Office at Clinton Correctional Facility, which, with its exhibit, demonstrates that claimant filed an administrative claim, but did not take an administrative appeal from the denial of that claim. In fact, the Court notes that this claim, filed on August 5, 2008, was filed even prior to the denial of claimant’s administrative claim on September 23, 2008 (see Affirmation of Michael Rizzo, AAG, Exhibit B). Inasmuch as claimant did not complete the administrative review process before filing this claim in the Court of Claims, the claim must be dismissed. Accordingly, it is

ORDERED, that defendant’s Motion No. M-75597 is GRANTED, and Claim No. 115638 is DISMISSED.

January 8, 2009
Albany, New York

HON. W. BROOKS DEBOW
Judge of the Court of Claims


Papers considered
:


(1) Claim No. 115638, filed August 5, 2008;

(2) Notice of Motion to Dismiss, dated September 24, 2008;

(3) Affirmation of Michael Rizzo, AAG, dated September 24, 2008, with Exhibit A;

(4) Affidavit of Nancy Pulsifer, sworn to September 24, 2008, with exhibit.