Claimant's motion seeking to dismiss the four affirmative defenses of the defendant was denied, and defendant's cross-motion for an order dismissing the claim for untimely service and filing was granted.
|Claimant short name:||GOLDSTEIN|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Motion number(s):||M-78784, CM-78881|
|Judge:||NICHOLAS V. MIDEY JR.|
|Claimant's attorney:||JOSEPH GOLDSTEIN, Pro Se|
|Defendant's attorney:||HON. ANDREW M. CUOMO
BY: Roberto Barbosa, Esq.,
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||December 16, 2010|
|See also (multicaptioned case)|
Claimant has brought a motion (M-78784) seeking an order dismissing the four affirmative defenses asserted by the defendant in its Verified Answer, together with an order granting him summary judgment as to liability. Defendant has responded with a cross-motion (CM-78881) not only opposing claimant's motion, but also seeking an order dismissing the claim due to untimely service and filing.
The following papers were considered by the Court in connection with these motions:
Notice of Motion; Affidavit in Support, with Exhibits 1,2
Notice of Cross-Motion, Affirmation in Opposition to Claimant's Motion and in Support of Defendant's Cross-Motion, with Exhibit 3,4
Filed Papers: Claim, Verified Answer.
In his filed claim, claimant seeks damages for the loss of certain items of personal property, as well as damage to his typewriter, which occurred when claimant, an inmate under the care and custody of the Department of Correctional Services, was transferred from Mid-State Correctional Facility to Groveland Correctional Facility.
Since this claim is in the nature of a bailment, the requirements for the service and filing of claim are governed by the provisions of Court of Claims Act § 10 (9). Pursuant to § 10 (9), a claim based upon an alleged loss of personal property by an inmate must be served and filed within 120 days after exhaustion of all administrative remedies.
In determining whether a claim has been timely served and filed, a court must therefore determine when an inmate has in fact exhausted his administrative remedies. In Blanche v State of New York (17 AD3d 1069), the Appellate Division, Fourth Department, specifically addressed this issue, and has determined that the accrual date under § 10 (9) commences not on the date of determination of the administrative appeal, but rather on the date that such final determination was received by the claimant.
In this particular matter, claimant acknowledges that he received the decision to his administrative appeal on March 12, 2010. In this decision, his administrative claim was approved in the amount of $24.30.
Therefore, if this date of receipt (March 12, 2010) is considered the date of accrual under the Blanche decision, there is no question that this claim is untimely, as both service of the claim (July 21, 2010) and filing of the claim with the Clerk of the Court of Claims (August 3, 2010) both occurred more than 120 days after receipt of the final administrative determination.
Claimant, however, contends that pursuant to Directive 2733 from the Department of Correctional Services (which sets forth the administrative claim filing and processing procedure for inmate personal property claims), claimant had 14 days from the date of receipt of the final administrative review decision to accept or reject the amount which had been approved (Directive 2733[IV][F]). Therefore, it is claimant's position that his cause of action did not accrue until 14 days after his receipt of the final administrative review decision, since the offer made therein was deemed rejected at that time pursuant to Directive 2733.
Section 10 (9), however, states that an inmate's claim accrues when he or she has "exhausted the personal property claims administrative remedy". Pursuant to Blanche, claimant had exhausted his administrative remedies on the date that he received the final administrative decision. Pursuant to that decision, claimant had the option of either accepting the offer made therein within 14 days, or if he rejected such offer, the option of instituting a claim in this Court. Even though claimant had these two options to consider, the actual administrative review was final as of claimant's receipt of that decision on March 12, 2010, since no further appeal from that decision was available.
Accordingly, since claimant failed to serve and file his claim within 120 days from the date his cause of action accrued under § 10 (9), his claim is untimely, rendering it jurisdictionally defective, and it must be dismissed.
As a result, the cross-motion (CM-78881) of the defendant seeking dismissal of the claim for untimely service and filing must be granted. It is therefore not necessary for this Court to address the merits of claimant's motion (M-78784) seeking dismissal of the affirmative defenses raised by the defendant in its Verified Answer, or his request for summary judgment as to liability.
Based on the foregoing, therefore, it is
ORDERED, that Motion No. M-78784 is hereby DENIED in its entirety; and it is further
ORDERED, that Cross-Motion No. CM-78881 is hereby GRANTED; and it is further
ORDERED, that Claim No. 118743 is hereby DISMISSED.
December 16, 2010
Syracuse, New York
NICHOLAS V. MIDEY JR.
Judge of the Court of Claims