New York State Court of Claims

New York State Court of Claims

COLE v. THE STATE OF NEW YORK, #2009-044-518, Claim No. 116174, Motion No. M-76083


Court grants defendant’s motion to dismiss inmate claimant’s claim for lost property due to failure to exhaust administrative remedies.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant’s attorney:
Defendant’s attorney:
HON. ANDREW M. CUOMO, ATTORNEY GENERALBY: Roberto Barbosa, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
March 24, 2009

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant, an inmate proceeding pro se, filed this claim alleging that defendant State of New York (defendant) negligently lost certain personal property belonging to him when he was transferred among numerous correctional facilities during the period of February 2006 through November 2008. In lieu of answering, defendant moves to dismiss the claim based upon claimant’s alleged failure to exhaust his administrative remedies. Claimant initially did not oppose this motion returnable on February 11, 2009, and specifically requested that the claim be withdrawn, by means of a letter to the Clerk of the Court dated January 12, 2009. However, on March 10, 2009, claimant submitted a “Notice of Motion” dated February 2, 2009 (with attached exhibits), which seeks denial of defendant’s motion to dismiss. In his cover letter dated March 6, 2009, claimant explains that he gave the documents to a correction officer on February 2, 2009. However, the officer failed to mail the items, and they were later discovered in the officer’s desk. Claimant also submitted further documentation on March 11, 2009. The Court will treat claimant’s two additional submissions as opposition to defendant’s motion to dismiss.

Defendant argues that because claimant’s facility claim for lost property has not yet been determined, claimant has not exhausted his administrative remedies and this claim is therefore premature.

Conversely, claimant contends that he filed his grievance complaint, and then appealed the determination to both the Superintendent and the Central Office Review Committee (CORC).

In order to file a claim for lost property in the Court of Claims, an inmate must have exhausted “the personal property claims administrative remedy, established for inmates by the [Department of Correctional Services]” (Court of Claims Act § 10 [9]). Claimant apparently filed Facility Claim # 390-0065-08 concerning his missing personal property on December 4, 2008. An investigation into the facility claim was still pending as of January 26, 2009 (Notice of Motion to Deny Defendant’s Motion to Dismiss dated February 2, 2009, Exhibit A). At that time, defendant also requested additional information to establish claimant’s ownership of the missing items as well as their monetary value. Neither party has submitted any evidence that Facility Claim # 390-0065-08 has been determined during the pendency of this motion. Claimant has clearly failed to exhaust his administrative remedies with respect to his institutional facility claim. Accordingly, this claim is premature, and is dismissed without prejudice.[1]

Defendant’s motion is granted in its entirety.

March 24, 2009
Binghamton, New York

Judge of the Court of Claims

The following papers were read on defendant’s motion:

1) Notice of Motion filed on January 12, 2009; Affirmation of Roberto Barbosa, Assistant Attorney General, dated January 8, 2009, and attached Exhibits A through D.

2) Letter from the claimant to the Court dated January 12, 2009.

3) Claimant’s Notice of Motion dated February 2, 2009; Unsworn “Affirmation” of Ronnie Cole dated February 2, 2009, and attached exhibits; Letter from claimant to Robert T. DeCataldo, Chief Clerk, dated March 6, 2009; Letter from claimant to Hon. Catherine Schaewe dated March 6, 2009.

Filed papers: Claim filed on December 8, 2008.

[1]. Claimant has apparently confused the Inmate Grievance Complaint concerning his personal property which he filed at Elmira Correctional Facility (Grievance No. EL 35-064-08) with his facility claim. Claimant appealed the grievance determination to both the Superintendent and CORC, thereby exhausting his administrative remedies with respect to the grievance. However, he has not yet exhausted the administrative remedy concerning his facility claim for lost property.