New York State Court of Claims

New York State Court of Claims

MARSHALL v. THE STATE OF NEW YORK, #2009-041-512, Claim No. 113364


Synopsis


Defendant’s trial motion to dismiss bailment claim is granted where claimant failed to exhaust administrative remedy provided by Court of Claims Act § 10 (9).

Case Information

UID:
2009-041-512
Claimant(s):
DEATRICK MARSHALL, 03-B-2203
Claimant short name:
MARSHALL
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
113364
Motion number(s):

Cross-motion number(s):

Judge:
FRANK P. MILANO
Claimant’s attorney:
DEATRICK MARSHALLPro Se
Defendant’s attorney:
HON. ANDREW M. CUOMO
New York State Attorney General
By: Thomas R. Monjeau, Esq. Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
October 28, 2009
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

While an inmate at Clinton Correctional Facility (Clinton) on September 13, 2006, Deatrick Marshall (claimant) left his cell for several hours to utilize the facility law library. Upon his return, claimant found his cell in disarray, with a number of personal possessions damaged or destroyed due to a sewer backup which had caused water, urine and waste to flood his cell. Claimant filed a claim seeking $312.00 in damages for the loss of or damage to his personal possessions


.

Claimant was the claimant’s sole witness at trial and the only admitted exhibit was the filed claim. Defendant, in its verified answer, asserted a defense that claimant had failed to comply with Court of Claims Act § 10 (9) by failing to exhaust his administrative remedies prior to bringing this 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 is obligated to establish at trial that he has complied with the non-waivable jurisdictional filing requirement contained in Court of Claims Act § 10 (9) (Williams v State of New York, 38 AD3d 646, 647 [2d Dept 2007]).

At trial, after claimant completed his case, defendant moved to dismiss the claim for failure of claimant to have first pursued “an institutional claim” with regard to the loss of his possessions. There was no testimony, nor is there any proof in the record, to demonstrate that claimant complied with Court of Claims Act § 10 (9). Defendant’s trial motion to dismiss, upon which the Court reserved decision, is now granted.

Having failed to comply with Court of Claims Act § 10 (9), the claim is jurisdictionally defective and is therefore dismissed.

All motions not previously decided are hereby denied.

Let judgment be entered accordingly.



October 28, 2009
Albany, New York

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