New York State Court of Claims

New York State Court of Claims

MARSHALL v. NEW YORK STATE DEPARTMENT OF CORRECTIONAL SERVICES, #2009-038-571, Claim No. 108843, Motion No. M-76978


Synopsis

Defendant's motion to dismiss inmate bailment claim granted. Claim was not filed and served until more than 120 days had passed since disapproval of the claim on administrative appeal

Case Information

UID:
2009-038-571
Claimant(s):
CONRAD MARSHALL
Claimant short name:
MARSHALL
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
108843
Motion number(s):
M-76978
Cross-motion number(s):

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

Signature date:
October 19, 2009
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)

.
Decision
Claimant, an inmate in the custody of the New York State Department of Correctional Services (DOCS), seeks monetary compensation for damage allegedly caused to his cassette radio and for the loss of a cassette tape. Defendant moves to dismiss the claim for lack of jurisdiction due to claimant’s failure to timely file and serve the claim, a defense that was asserted in its verified answer to the claim. Claimant has not submitted opposition to the motion.
The claim alleges that claimant’s property was damaged and lost on or about December 31, 2002. The claim is appended by an inmate grievance form, which indicates that claimant’s appeal from the denial of his inmate claim was decided on May 5, 2003. The instant claim was filed with the Court of Claims on January 29, 2004, and served upon the Office of the Attorney General on January 29, 2004.
Pursuant to Court of Claims Act § 10(9), a claim by an inmate for loss or damage to property must be filed and served within one hundred twenty (120) days after the available administrative remedies have been exhausted. Here, the 120-day period began to run on May 5, 2003, when claimant’s administrative appeal was disapproved (see Blanche v State of New York, 17 AD3d 1069, 1071 [4th Dept 2005]; Gloster v State of New York, 6 Misc 3d 1001(A) [Ct Cl 2002]). Accordingly, the time within which to file and serve this claim expired on September 2, 2003. Inasmuch as the claim was not served or filed until January of 2004, several months after that date, it must be dismissed because the Court lacks subject matter jurisdiction over the untimely claim (see Pristell v State of New York, 40 AD3d 1198 [3d Dept 2007]; Desmarat v State of New York, UID # 2009-030-535, Claim No. 115579, Motion Nos. M-76553, CM-76624, Scuccimarra, J. [May 21, 2009]).
Accordingly, Motion No. M-76978 is GRANTED, and Claim No. 108843 is DISMISSED.
October 19, 2009
Albany, New York
HON. W. BROOKS DEBOW
Judge of the Court of Claims
Papers Considered
:
(1) Claim No. 108843, filed January 29, 2004, with exhibits;
(2) Verified Answer, filed March 5, 2004;
(3) Affirmation in Support [sic] of Motion to Dismiss, dated July 20, 2009;
(4) Affirmation of Paul F. Cagino in Support of Motion to Dismiss, dated July 20, 2009, with exhibits.