New York State Court of Claims

New York State Court of Claims

LIVINGSTON v. THE STATE OF NEW YORK, #2009-040-043, Claim No. 115995, Motion No. M-76501


Synopsis


State’s motion to dismiss granted as Claimant failed to exhaust his administrative remedies prior to filing Claim as required by Court of Claims Act § 10(9).

Case Information

UID:
2009-040-043
Claimant(s):
DETROY LIVINGSTON
Claimant short name:
LIVINGSTON
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
115995
Motion number(s):
M-76501
Cross-motion number(s):

Judge:
CHRISTOPHER J. McCARTHY
Claimant’s attorney:
Detroy Livingston, Pro Se
Defendant’s attorney:
ANDREW M. CUOMO
Attorney General of the State of New YorkBy: Paul F. Cagino, Esq., AAG
Third-party defendant’s attorney:

Signature date:
June 4, 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 prior to filing the Claim, in accordance with Court of Claims Act (hereinafter CCA) § 10(9), is granted.

The Claim was filed with the Clerk of the Court on October 23, 2008. In it, Claimant alleges that Correction Officer (CO) M. Irish told him that Claimant’s property in the Special Housing Unit (SHU) storage room at Upstate Correctional Facility (Upstate), located in Malone, New York, was packed by the CO on September 3, 2008, when he packed up other property Claimant had in his cell. Claimant asserts that, when he arrived at Wende Correctional Facility (Wende), located in Alden, New York, he inventoried his property and noticed that numerous items were either missing or broken. Claimant asserts that the Claim is filed within 90 days of discovering the loss/destruction 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 Bonnie Boadway, who is employed as a Clerk II at Upstate and whose duties include responding to inquiries regarding inmate property claims. Ms. Boadway avers that, as of November 21, 2008, Claimant had not filed an inmate property claim regarding loss of property during his transfer from Upstate to Wende (Boadway Affidavit, ¶¶ 2-3)[1]. The State has also submitted the affidavit of Wanda Stachowski, who is employed as an Inmate Records Coordinator at Wende and whose duties include responding to inquiries regarding inmate property claims. Ms. Stachowski avers that, as of November 21, 2008, Claimant had not filed an inmate property claim regarding loss of property during his transfer from Upstate to Wende (Stachowski Affidavit, ¶¶ 2-3). Claimant has opposed the motion. He has submitted an affidavit[2] wherein he states that he has filed several bailment claims with prison officials, both at Upstate and at Wende, regarding this lost property (Livingston Affidavit, ¶¶ 3-5). Claimant also submitted a copy of his Inmate Claim Form with respect to his bailment claim at Wende (received by the Court on May 6, 2009). The form appears to include each of the items identified in his Claim. The first page of the form indicates that Claimant prepared the Inmate Claim Form on November 30, 2008, five days after the State filed the instant motion. The third page of the form indicates that Claimant’s institutional claim was “disapproved” as was his appeal. His appeal was decided on April 23, 2009. The form also contains a typewritten statement, “[a] claim may be filed in the NYS Court of Claims. Your claim must be filed and served within 120 days of the date of this final determination, as required by law.”

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 (Affirmation of Paul F. Cagino, Esq., ¶ 8).

On the record before the Court, the only conclusion that can be reached is that, as of the dates Claimant served and filed this Claim (October 20 and 23, 2008, respectively), he had not yet filed an institutional claim, no less, 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 was exhausted (April 23, 2009, with respect to his bailment claim at Wende).



June 4, 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,
and Exhibits Attached 1

Affidavit in Opposition 2


Letter to Court from Claimant
with Exhibit attached 3



Filed Papers: Claim


[1].The Court notes that the State’s motion is dated November 24, 2008 and was received by the Clerk of the Court on November 25, 2008. The motion was held by the Clerk until Claimant paid the Court filing fee for filing a Claim. Once the fee was paid, the motion was given a return date of May 13, 2009 and placed on this Court’s calendar.
[2].Claimant submitted the affidavit in support of a Motion to Dismiss the State’s Motion. As a separate motion to dismiss a motion is unnecessary, the Court considered the affidavit as one opposing the State’s motion.