New York State Court of Claims

New York State Court of Claims

MASON v. STATE OF NEW YORK, #2009-040-011, Claim No. 115754, Motion No. M-75651


Synopsis


Prisoner bailment claim dismissed as Claimant failed to exhaust administrative remedies as required by CCA § 10(9).

Case Information

UID:
2009-040-011
Claimant(s):
ROBERT MASON #86A7415
1 1.Caption amended to reflect the State of New York as the proper defendant
Claimant short name:
MASON
Footnote (claimant name) :

Defendant(s):
STATE OF NEW YORK
Footnote (defendant name) :
Caption amended to reflect the State of New York as the proper defendant
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
115754
Motion number(s):
M-75651
Cross-motion number(s):

Judge:
CHRISTOPHER J. MCCARTHY
Claimant’s attorney:
Robert Mason, Pro Se
Defendant’s attorney:
ANDREW M. CUOMO
Attorney General of the State of New YorkBy: Michael Rizzo, Esq., AAG
Third-party defendant’s attorney:

Signature date:
January 21, 2009
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

For the reasons set forth below, the State’s pre-answer motion to dismiss the Claim based upon Claimant’s failure to exhaust his administrative remedies in accordance with Court of Claims Act (hereinafter CCA) § 10(9) is granted.

The Claim, which was filed with the Clerk of the Court on August 27, 2008, alleges that, on July 7 and 8, 2008, Claimant’s personal legal papers were packed at Upstate Correctional Facility (Upstate) in Malone, New York for his trip to Court. In connection with that trip, Claimant was transferred from Upstate to Downstate Correctional Facility in Fishkill, New York and then to Sing Sing Correctional Facility in Ossining, New York. Claimant asserts that the papers were lost by the Defendant. Claimant asserts that, on July 26, 2008, he filed a grievance seeking damages for the loss of his property.

Defendant moves for dismissal of this bailment claim on the basis that Claimant has failed to exhaust his administrative remedies pursuant to CCA § 10(9) as of the date the Claim was filed. CCA § 10(9) provides 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. Such claim must be filed and served within one hundred twenty days after the date on which the inmate has exhausted such remedy.
The State’s papers include the Affidavit of Sandra Danforth, who is employed as an Institution Steward at Upstate and whose duties include reviewing, maintaining and assisting in responding to inmate property claims. Ms. Danforth avers that Claimant filed an inmate property claim on July 30, 2008 but that there had not yet been any decision on the matter because it was still under investigation (Danforth Affidavit, ¶¶ 3-4). The affidavit was sworn to October 2, 2008. Claimant has not submitted any opposition papers and, thus, Ms Danforth’s assertions are uncontroverted.

The Department of Correctional Services has established a two-tier system for handling personal property claims consisting of an initial review and an appeal (7 NYCRR 1700.3). Each of these “separate and distinct steps must be completed at the time a claim is filed and served in order for a claimant to be deemed to have exhausted his or her administrative remedies pursuant to CCA §10(9)” (Tafari v State of New York, Ct Cl, Claim No. 106576, Motion No. M-65889, December 9, 2002, Lebous, J. [UID No. 2002-019-591]; see Griffin v State of New York, Ct Cl, Claim No. 113558, Motion No. M-73532, August 23, 2007, Collins, J. [UID No. 2007-015-232]). The State argues that Claimant filed and served this Claim before he exhausted those administrative remedies (Michael Rizzo Affirmation, ¶¶ 7-8).

On the record before the Court, the only one conclusion that can be reached is that, as of the dates Claimant filed and served this Claim (August 27 and 29, 2008, respectively), he had not exhausted his administrative remedies and, as such, this Claim is premature pursuant to CCA § 10(9) (see Griffin v State of New York, Ct Cl, Claim No. 113558, Motion No. M-73532, August 23, 2007, Collins, J. [UID No. 2007-015-232], supra; Tafari v State of New York, Ct Cl, Claim No. 106576, Motion No. M-65889, December 9, 2002, Lebous, J. [UID No. 2002-019-591), supra.

For the foregoing reasons, Defendant's motion is granted and the Claim is dismissed. The Court notes that Claimant may file and serve a new Claim within 120 days after the date his administrative remedy is exhausted.


January 21, 2009
Albany, New York

HON. CHRISTOPHER J. MCCARTHY
Judge of the Court of Claims


The following papers were read and considered by the Court on the State’s motion to dismiss the Claim:

Papers Numbered


Notice of Motion, Affirmation,
Affidavit and Exhibits Attached 1


Filed Papers: Claim