Cross-motion to dismiss bailment claim as untimely served more than 120 days after exhaustion of administrative remedies granted. Claim also served by regular mail, rather than personally or by certified mail, return receipt requested. Both waiveable defenses were raised in answer. Motion by claimant to reargue prior denial of summary judgment denied.
|Claimant short name:||BOOKER|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :||The caption has been amended to reflect the only proper defendant.|
|Judge:||THOMAS H. SCUCCIMARRA|
|Claimant's attorney:||AMIN BOOKER, PRO SE|
|Defendant's attorney:||HON. ANDREW M. CUOMO, NEW YORK STATE
BY: BARRY KAUFMAN, ASSISTANT ATTORNEY GENERAL
|Third-party defendant's attorney:|
|Signature date:||January 25, 2010|
|See also (multicaptioned case)|
The following papers were read and considered on the motions submitted herein:
1,2 Notice of Motion to Re-Argue Claimant's Motion for Reimbursement of Property Lost Claim; Affidavit in Support of Reargument of Claimant's Motion by Amin Booker, Claimant, and attached exhibits
3,4 Notice of Cross-Motion; Affirmation in Opposition to Claimant's Motion and in Support of Defendant's Cross-Motion by Barry Kaufman, Assistant Attorney General and attached exhibits
5-7 Filed papers: Claim, Answer, Booker v State of New York, UID #2009-030-543, Claim No. 116882, Motion No. M-76825 (Scuccimarra, J., July 28, 2009)
Amin Booker alleges in his claim that defendant's agents at Green Haven Correctional Facility took his personal property without authorization from the special housing unit storage area in August 2008. He indicates that he pursued a grievance and a personal property facility claim, and asserts a date of accrual of August 28, 2008. The claim was filed in the Office of the Chief Clerk of the Court of Claims on May 19, 2009. The "certificate of service by mail" filed with the claim indicates that "notice, claim, affidavit of reduction/waiver" was served on the Attorney General by mail on May 14, 2009. The defendant filed an answer on June 24, 2009, that was served on or about June 22, 2009. 22 NYCRR §206.7(a).
In prior motion practice, claimant's motion for an order granting poor person relief and summary judgment, that had been filed together with the claim, was denied. [See Booker v State of New York, UID #2009-030-543, Claim No. 116882, Motion No. M-76825 (Scuccimarra, J., July 28, 2009)].MOTION FOR REARGUMENT
Claimant's present motion seeks reargument of the motion decided above. In a "reasons for reargument" section of claimant's submission, he indicates that the "questions presented" are "is the defendant held liable for the loss of claimants personal property that was in their possession when lost" and "is the courts order and decision dismissing claimants motion a dismissal of the claims entire proceeding in this court." (sic) [See Affidavit in Support by Amin Booker, claimant]. Mr. Booker follows the questions presented section with arguments concerning the questions he raises. As sometimes occurs with pro se litigants, claimant seems to be reacting to receipt of the defendant's answer denying the allegations of the claim and raising defenses. As noted in the prior decision and order, summary relief is premature.
"A motion for reargument, addressed to the discretion of the court, is designed to afford a party an opportunity to establish that the court overlooked or misapprehended the relevant facts, or misapplied any controlling principle of law. Its purpose is not to serve as a vehicle to permit the unsuccessful party to argue once again the very questions previously decided . . . (citations omitted). Nor does reargument serve to provide a party an opportunity to advance arguments different from those tendered on the original application." Foley v Roche, 68 AD2d 558, 567-568 (1st Dept 1979); Loris v S & W Realty Corp., 16 AD3d 729, 730 (3d Dept 2005); see Civil Practice Law and Rules §2221(d)(2). Additionally, such a motion should be brought within thirty (30) days after service of a copy of the order with notice of entry, or in any event prior to the entry of any judgment by the appellate court to which an appeal has been taken. Civil Practice Law and Rules §2221(d)(3); see Bray v Gluck, 235 AD2d 72 (3d Dept 1997), lv dismissed 91 NY2d 1002 (1998).
The papers submitted by claimant do not establish that the Court misapplied any controlling principle of law; therefore the motion for reargument is denied.CROSS-MOTION TO DISMISS CLAIM
Defendant moves to dismiss the claim based upon a lack of subject matter and personal jurisdiction, raised in its answer in its third, fifth and seventh defenses.
Court of Claims Act §10(9) provides that an inmate's claim for loss of personal property may not be filed until the administrative remedies provided by the applicable regulations have been exhausted. [See 7 NYCRR Part 1700]. Thereafter, ". . . [s]uch claim must be filed and served within one hundred twenty days after the date on which the inmate has exhausted such remedy." Court of Claims Act §10(9). Here, the final administrative appeal of his claim for loss of personal property was denied on September 5, 2008. [Affirmation by Barry Kaufman, ¶8, Exhibit 1]. Claimant should have served and filed his claim by January 3, 2009, but instead served his claim on May 18, 2009. [Ibid. ¶¶8 and 9, Exhibit 2].
Court of Claims Act §11(c)(i) provides that a failure to comply with the time limitations contained in Court of Claims Act §10 is waived unless raised in either a pre-answer motion to dismiss or in the answer. Here, although claimant has apparently exhausted his administrative remedies (thus the condition precedent to suit implicating the subject matter jurisdiction of the Court of Claims has been met), he failed to timely serve and file his claim within 120 days of such final determination. While it has been held that the requirement of exhaustion of administrative remedies is not a time limitation, but rather a matter of subject matter jurisdiction that cannot be waived, [see Williams v State of New York, 38 AD3d 646, 647 (2d Dept 2007)],(2) a failure to serve and file a claim within 120 days of exhaustion of administrative remedies is a matter of timeliness, and therefore a waiveable defense under a fair reading of the statute. See Court of Claims Act §11(c).(3) As the defense of failure to timely serve the claim was appropriately raised in the answer, is apparent on the face of the claim (it is verified on May 14, 2009), and is established on the cross-motion without rebuttal, the claim may be dismissed on this ground alone.
Additionally, it appears that the claim was served on the attorney general's office by regular mail, rather than personally, or by certified mail, return receipt requested as required to obtain personal jurisdiction over the defendant. Court of Claims Act §11(a)(i); [Affirmation by Barry Kaufman, ¶14, Exhibit 4]. Indeed, the affidavit of service filed with the claim does not attest to certified mail, return receipt requested. [See Claim No. 116882]. This defense, too, was raised in the defendant's answer, and established herein without rebuttal.
Based on the foregoing, claimant's motion is denied, defendant's cross-motion is granted, and Claim number 116882 is in all respects dismissed.
January 25, 2010
White Plains, New York
THOMAS H. SCUCCIMARRA
Judge of the Court of Claims
2. The exhaustion requirement is clearly akin to other such unwaiveable "jurisdictional" filing requirements contained in Court of Claims Act §10 [see Finnerty v New York State Thruway Authority, 75 NY2d 721, 723(1989) (Failure to serve claim on both the Attorney General and the New York State Thruway Authority, as required in the statute, results in an unwaiveable defect in subject matter jurisdiction).
3. The decisions in Pristell v State of New York, 40 AD3d 1198 (3d Dept 2007) and Bush v State of New York, 60 AD3d 1244 (3d Dept 2009), cited by defendant as part of its argument that the failure to serve and file the claim within 120 days of exhaustion is a matter of subject matter jurisdiction, are not to the contrary. The main concern therein was affirming that the timely service of an adequate notice of intention, application for treatment of a notice of intention as a claim under Court of Claims Act §10(8), as well as late claim motion practice under Court of Claims Act §10(6), is unavailable for inmate claims asserting personal property loss under Court of Claims Act §10(9).