New York State Court of Claims

New York State Court of Claims

ALI v. THE STATE OF NEW YORK, #2009-038-521, Claim No. 115702, Motion No. M-75682


M-75811


Synopsis


Defendant’s motion to dismiss bailment claim granted where claimant did not pursue administrative remedies

Case Information

UID:
2009-038-521
Claimant(s):
MR. MINISTER TALIV ALI
Claimant short name:
ALI
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
115702
Motion number(s):
M-75682M-75811
Cross-motion number(s):

Judge:
W. BROOKS DeBOW
Claimant’s attorney:
MR. MINISTER TALIV ALI, Pro se
Defendant’s attorney:
ANDREW M. CUOMO, Attorney General of the State of New York
By: Paul F. Cagino, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
March 5, 2009
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)

.
Decision

This claim in the nature of negligent bailment seeks compensation for property that was in draft bags that were allegedly lost concomitant to claimant’s transfer from Upstate Correctional Facility to Green Haven Correctional Facility on or about May 20, 2008. By notice of motion filed on August 15, 2008, claimant requests issuance of a subpoena duces tecum, by which he apparently seeks to recover legal documents that were contained in the allegedly lost draft bags (M-75682). Defendant has submitted a pre-answer motion (M-75811) seeking dismissal of the claim on the grounds that claimant failed to exhaust his administrative remedies and for lack of subject matter jurisdiction owing to claimant’s improper service of the claim. Turning first to defendant’s motion to dismiss the claim, 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” (emphasis added). Claimant’s failure to exhaust the available administrative remedies (see 7 NYCRR § 1700.3) deprives the Court of Claims of subject matter jurisdiction and requires dismissal of the claim (see Williams v State of New York, 38 AD3d 646, 647 [2d Dept 2007]). In support of its motion, defendant has submitted the affidavits of employees at Green Haven and Upstate Correctional Facilities which demonstrate that claimant did not file any grievance relating to the alleged property loss that is the subject of this claim. Claimant’s submission in response to defendant’s motion to dismiss does not address these affidavits nor does he claim that he did, in fact, pursue and exhaust his administrative remedies. Thus, defendant’s motion to dismiss must be granted.

In light of this conclusion, defendant’s contention that the Court lacks personal jurisdiction over defendant because the claim was improperly served on the Attorney General need not be addressed. Further, because the claim will be dismissed, claimant’s motion for a subpoena duces tecum need not be considered. Accordingly, it is

ORDERED, that Motion No. M-75811 is GRANTED, and Claim No. 115702 is hereby DISMISSED, and it is further

ORDERED, that Motion No. M-75682 is DENIED as moot.

March 5, 2009
Albany, New York

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


Papers considered
:


(1) Claim No. 115702, filed August 15, 2008;

(2) Notice of Motion (M-75682), filed August 15, 2008;

(3) Notice of Motion (M-75811), dated November 6, 2008;

(4) Affirmation of Paul F. Cagino, dated November 5, 2008, with exhibits;

(5) Affidavit of Bonnie Boadway, sworn to November 4, 2008;

(6) Affidavit of David Smith, sworn to November 6, 2008;

(7) Submission of Mr. Minister Taliv Ali, dated September 8, 2008 and filed November 17, 2008, with exhibits.