New York State Court of Claims

New York State Court of Claims

DORSEY v. STATE OF NEW YORK, #2009-039-131, Claim No. 116563, Motion No. M-76559


Synopsis


Defendant’s motion to dismiss the claim on the jurisdictional ground that claimant did not exhaust the personal property claims administrative remedies pursuant to Court of Claims Act § 10 (9) and 7 NYCRR 1700.3 is granted. Defendant’s offer of affidavits from prison personnel establishing that claimant did not file the required inmate property claims is sufficient to establish its prima facie burden. Claimant did not offer sufficient proof in opposition to the motion to establish that he complied with Court of Claims Act § 10 (9).

Case Information

UID:
2009-039-131
Claimant(s):
LEROY DORSEY, 97A3442
Claimant short name:
DORSEY
Footnote (claimant name) :

Defendant(s):
STATE OF NEW YORK1 1.The Court has, sua sponte, amended the caption to reflect the State of New York as the only proper defendant.
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
116563
Motion number(s):
M-76559
Cross-motion number(s):

Judge:
James H. Ferreira
Claimant’s attorney:
Leroy Dorsey, 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:
July 21, 2009
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

On March 16, 2009, claimant filed a claim seeking damages for the loss of personal property on November 19, 2008 and December 20, 2008 while he was an inmate at Coxsackie Correctional Facility and Clinton Correctional Facility. Defendant now moves the Court for an order dismissing the claim on jurisdictional grounds pursuant to Court of Claims Act § 10 (9).

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 affidavits of Anne Green, Inmate Records Coordinator at Coxsackie Correctional Facility, and Donna Donahue, Head Account Clerk at Clinton Correctional Facility. Green and Donahue are responsible for “answer[ing] inquiries from the New York State Office of the Attorney General relative to inmate records contained at th[e] facilit[ies].” Green states that she “personally reviewed our records, which show that inmate Leroy Dorsey (DIN No. 97A3442) has not filed any inmate property claim at this facility in connection with his property from November 19, 2008 through December 20, 2008.” Donahue states that she “personally reviewed our records, which show that the only inmate property claims filed at this facility by inmate Leroy Dorsey (DIN No. 97A3442) are #020-0275-08 and #020-0293-08 (copies attached).” Donahue further provides that “[o]ur records indicate that inmate Dorsey did not administratively appeal the February 17, 2009 decision in inmate property claim #020-0293-08.”

The Court finds that defendant has offered sufficient proof to establish that claimant failed to exhaust his administrative remedies in accordance with Court of Claims Act § 10 (9). The Court has considered claimant’s papers offered in opposition to the motion and finds them unpersuasive.

Accordingly, it is hereby

ORDERED that M-76559 is granted and the claim is dismissed.


July 21, 2009
Albany, New York

HON. JAMES H. FERREIRA
Judge of the Court of Claims


Papers Considered
:
  1. Notice of Motion to Dismiss dated April 20, 2009;
  2. Affirmation in Support of Motion to Dismiss by Paul F. Cagino, AAG, dated April 20, 2009 with exhibits;
  3. “Reply Motion” by Leroy Dorsey sworn to on April 28, 2009; and
  4. “Motion Evidence” by Leroy Dorsey dated July 6, 2009.