New York State Court of Claims

New York State Court of Claims

GATHERS v. STATE OF NEW YORK, #2009-039-122, Claim No. 116543, Motion No. M-76475


Defendant’s motion to dismiss the bailment claim pursuant to Sections 10 and 11 of the Court of Claims Act and CPLR 3211 (a)(2) and (8) on the ground that claimant did not exhaust 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:
Antwan Gathers, 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:
May 27, 2009

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant alleges that on or about September 12, 2008, while he was an inmate at Clinton Correctional Facility, various items of his personal property were stolen after facility officials ordered him to leave the items in an unsecured cabinet while he attended the facility’s clinic. Shortly thereafter, claimant filed inmate claim # 020-0205-08 with the facility seeking reimbursement for the lost personal property items. A claim for damages was filed with the Court of Claims on March 11, 2009. Defendant now moves the Court, in lieu of an answer, for an order dismissing the claim pursuant to Sections 10 and 11 of Court of Claims Act and CPLR 3211 (a)(2) and (8) on the ground that claimant has not exhausted his administrative remedies. Attached to defendant’s motion papers is an affidavit of service which states that claimant was served with defendant’s notice of motion to dismiss and supporting papers on March 30, 2009. To date, the Court has not received any opposition to the motion from claimant.

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 its motion, defendant offers the affidavit of Donna Donahue, Head Account Clerk at the Clinton Correctional Facility, whose duties include processing inmate property claims that are filed at the facility. Donahue states that she personally reviewed the facility’s records “which show that [claimant] filed inmate property claim # 020-0205-08 in connection with certain personal property that he claims was stolen while he was at the facility clinic on or about September 12, 2008.” Donahue further provides that the facility’s “ records indicate that this inmate property claim number was disapproved on November 11, 2008,” that claimant “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 # 020-0205-08 which includes, among other things, the facility’s denial of the claim following its initial review.

Moreover, the Court has reviewed various exhibits that are attached to the claim that was filed with the Court which reveal that claimant appealed a related IGRC response to the Superintendent. Notably, however, there are no documents attached to the claim which establish that claimant pursued an appeal of facility claim # 020-0205-08. 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.

Accordingly, it is hereby ordered that M-76475 is granted and the claim is dismissed.

May 27, 2009
Albany, New York

Judge of the Court of Claims

Papers Considered
  1. Notice of Motion dated March 27, 2009;
  2. Affirmation in Support of Motion to Dismiss by Paul F. Cagino, AAG, affirmed on March 27, 2009 with exhibits; and
  3. Affidavit of Donna Donahue, sworn to on March 24, 2009.