New York State Court of Claims

New York State Court of Claims

DIAZ v. THE STATE OF NEW YORK, #2009-041-017, Claim No. 116490, Motion No. M-76509


Synopsis


The Court grants defendant’s motion to dismiss the claim based upon the failure of claimant to exhaust his administrative remedy as required by Court of Claims Act § 10 (9).

Case Information

UID:
2009-041-017
Claimant(s):
JOSE DIAZ, DIN #06A6766
Claimant short name:
DIAZ
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
116490
Motion number(s):
M-76509
Cross-motion number(s):

Judge:
FRANK P. MILANO
Claimant’s attorney:
NONE
Defendant’s attorney:
HON. ANDREW M. CUOMO
New York State Attorney GeneralBy: Paul F. Cagino, Esq., Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
May 14, 2009
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision


The defendant moves to dismiss the claim based upon the claimant’s failure to exhaust his administrative remedy as required by Court of Claims Act § 10 (9). Claimant has not opposed the motion. The claim alleges that the defendant was responsible for the alleged loss of claimant’s personal property in October 2008. Claimant submitted an Inmate Claim Form for the lost property to the Fishkill Correctional Facility Institutional Steward. The claim was denied on January 22, 2009 and claimant was advised in writing of his right to an administrative appeal of the denial.

Rather than filing an administrative appeal, claimant commenced this action.

Defendant responded with the instant motion to dismiss, alleging claimant failed to exhaust his administrative remedy (see 7 NYCRR Part 1700, entitled “Inmate Personal Property Claims”). In support of the motion, defendant offers the affidavit of the Institutional Steward demonstrating that claimant has not administratively appealed the initial denial of his claim.

Court of Claims Act § 10 (9) provides as follows:
“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.”
An inmate seeking damages for lost property must exhaust the administrative remedy established by Department of Correctional Services, which constitutes a non-waivable jurisdictional filing requirement (Williams v State of New York, 38 AD3d 646, 647 [2d Dept 2007]).

The Court finds that claimant failed to exhaust his administrative remedy prior to filing and serving the claim. The defendant’s motion to dismiss the claim is granted. The claim is dismissed.



May 14, 2009
Albany, New York

HON. FRANK P. MILANO
Judge of the Court of Claims


Papers Considered:

  1. Defendant’s Notice of Motion to Dismiss, filed April 2, 2009;
  2. Affirmation of Paul F. Cagino, dated April 2, 2009, and annexed exhibits;
  3. Affidavit of Suzette Pettorossi, sworn to March 25, 2009.