New York State Court of Claims

New York State Court of Claims

DUFF v. STATE OF NEW YORK, #2009-039-121, Claim No. 116287, Motion No. M-76235


Defendant’s motion to dismiss the claim for damage to claimant’s typewriter by prison officials, pursuant to Court of Claims Act Sections 10 and 11 and CPLR 3211 (a) (2) and (8), on the grounds that claimant has not exhausted his administrative remedies is granted.

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):

James H. Ferreira
Claimant’s attorney:
William Duff, pro se
Defendant’s attorney:
Hon. Andrew M. Cuomo
Attorney General of the State of New York
By: Paul F. CaginoAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
June 4, 2009

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant filed grievance # ADK-3943-08 with the Adirondack Correctional Facility alleging, among other things, that on July 16, 2008, while an inmate at Clinton Correctional Facility, his typewriter was illegally confiscated and damaged by prison officials. Following a review of the grievance, the Superintendent concluded that there was “no evidence to support [the] claim of staff misconduct,” which was subsequently upheld by the Central Office Review Committee on October 1, 2008.

On January 9, 2009, claimant filed a claim for damages with the Chief Clerk of the Court of Claims, which was received by defendant that same day, wherein it is alleged, in relevant part, that on July 16, 2008 claimant’s typewriter was confiscated during “a facility shake down” and later returned to claimant “broken [and] inoperable.” By letter dated January 9, 2009, the Albany Claims Bureau of the Office of the Attorney General notified claimant that, pursuant to CPLR 3022, defendant was electing to treat the claim as a nullity because it was not verified. Defendant now moves the Court for an order dismissing the claim pursuant to Sections 10 and 11 of the Court of Claims Act and CPLR 3211 (a)(2) and (8) on the grounds that claimant has not exhausted his administrative remedies and the claim is unverified. Claimant opposes the motion and argues, among other things, that he exhausted his administrative remedies with respect to the damage to his typewriter.

Section 10 (9) provides, in relevant part, 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 personal property claims is codified at 7 NYCRR 1700.3 and provides for a “two-tier system of administrative review.” “All inmate personal property claims shall be filed with and reviewed by the deputy superintendent for administration or functional equivalent, or by a claims reviewer designated by the head of the facility” (7 NYCRR 1700.3 [a]). “If an inmate desires further review, . . . [then] the appeal shall be made to, reviewed and decided by the facility superintendent or designee . . . [or] forwarded to central office” depending on the value of the claim (7 NYCRR 1700.3 [b]). The administrative regulation further provides that “[n]o further administrative review is available after appeal [and] [t]he remaining option is for the inmate to pursue the claim in the Court of Claims” (7 NYCRR 1700.3 [b] [4]). The failure to comply with the jurisdictional filing requirements of 7 NYCRR 1700.3 necessitates dismissal of the claim (see Williams v State of New York, 38 AD3d 646, 647 [2007]).

In support of this aspect of its motion, defendant offers the affidavit of Cathy Caron, Head Account Clerk at the Adirondack Correctional Facility, whose duties include processing inmate property claims that are filed at the facility. Caron states that she personally reviewed the facility’s records “which show that [claimant] filed inmate property claim number 230-0023-08 in connection with a typewriter that he claims was confiscated and thereafter damaged during a ‘shake down’ at the Clinton Correctional Facility on or about July 16, 2008.” Caron further provides that the facility’s “records indicate that this inmate property claim number was disapproved on or about August 29, 2008,” that “inmate Duff has not filed any administrative appeal in connection with that decision” and that “[t]he time within which to file an appeal from that decision has expired.” In further support of its motion, defendant attaches a copy of inmate claim form # 230-0023-08 which includes, among other things, the facility’s denial of the claim following its initial review, without more. Claimant does not offer any documentation in opposition to the motion to establish that he appealed the facility’s initial review of inmate claim # 230-0023-08 to the Superintendent. The only documentation offered by claimant relates to his appeal of grievance # ADK-3943-08.

Moreover, to the extent that claimant seeks damages for emotional distress due to the alleged loss and destruction of his typewriter, the Court notes that such damages “are not recoverable in a claim for property damage or loss” (La Mountain v State of New York, UID# 2008-015-105, Claim No. 111563, M-75418, December 10, 2008, [Collins, J., Ct Cl]).

Thus, the Court is constrained to find that claimant has not exhausted his administrative remedies with respect to the claim and is, therefore, without jurisdiction.

The Court further finds that it is without jurisdiction of the claim because it is not verified in accordance with Court of Claims Act § 11 (b). That section provides, among other things, that “[t]he claim and notice of intention to file a claim shall be verified in the same manner as a complaint in an action in the supreme court.” It is well settled that “all of the requirements in section 11 (b) are ‘substantive conditions upon the State’s waiver of sovereign immunity’ ” (Kolnacki v State of New York, 8 NY3d 277, 280-281 [2007], quoting Lepkowski v State of New York, 1 NY3d 201, 207 [2003]), and that “[t]he failure to satisfy any of the conditions is a jurisdictional defect” (id. at 281). Moreover, “[w]here a pleading is served without a sufficient verification in a case where the adverse party is entitled to a verified pleading, he [or she] may treat it as a nullity, provided he [or she] gives notice with due diligence to the attorney of the adverse party that he [or she] elects so to do” (CPLR 3022). “ ‘[D]ue diligence’ as used in [CPLR 3022] has been interpreted to mean notice given immediately . . . or at least within 24 hours of the receipt of a defective pleading” (Air N.Y. v Alphonse Hotel Corp., 86 AD2d 932 [1982], quoting Matter of O’Neil v Kasler, 53 AD2d 310 [1976]).

Here, defendant received the allegedly defective claim on January 9, 2009, and authored a letter that same day providing claimant with written notification that it was treating the claim as a nullity pursuant to CPLR 3022. Certainly, defendant’s notice sent the same day as receipt of the defective claim constitutes due diligence, and there is no proof before the Court that claimant subsequently served defendant with a properly verified claim. Thus, the Court is constrained to find that it is without jurisdiction for the additional reason that the claim is not verified.

Accordingly, it is hereby ordered that M-76235 is granted and the claim is dismissed.

June 4, 2009
Albany, New York

Judge of the Court of Claims

Papers Considered
  1. Notice of Motion dated February 9, 2009;
  2. Affirmation in Support of Motion to Dismiss by Paul F. Cagino, AAG, affirmed on February 9, 2009 with exhibits;
  3. Affidavit of Cathy Caron, sworn to on February 3, 2009; and
  4. Affidavit in Opposition to Motion to Dismiss by William Duff, sworn to on February 18, 2009 with exhibits; and
  5. Oppositional Affidavit by William Duff.[1]

[1]. The Court has taken the liberty of considering claimant’s Oppositional Affidavit even though it is an unsworn document.