|Claimant short name:||PERKINS|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||JUDITH A. HARD|
|Claimant's attorney:||Michael Perkins, Pro Se|
|Defendant's attorney:||Hon. Andrew M. Cuomo, NYS Attorney General
By: Roberto Barbosa, Assistant Attorney General, Of Counsel
|Third-party defendant's attorney:|
|Signature date:||May 12, 2010|
|See also (multicaptioned case)|
Movant, an inmate at Upstate Correctional Facility, requests permission from the Court to file a late claim. Based on his proposed claim, it appears that movant is alleging three instances in which defendant allegedly destroyed and/or lost his personal property. Defendant opposes the motion on the basis that late claim relief pursuant to Court of Claims Act 10(6) is not available for claims regarding the loss of personal property. The Court agrees and for the reasons set forth below, denies movant's application.
Movant's first proposed cause of action alleges that on April 14, 2008, his books were allegedly lost and destroyed by defendant. Movant filed an inmate claim which was disapproved on May 19, 2008 and again, after appellate review, on May 27, 2008. Movant's second proposed cause of action alleges that on or about July 5, 2008, defendant lost and destroyed his property. Movant filed an inmate claim which was approved in the sum of $21.00 on October 2, 2008 and again, after appellate review, on October 5, 2008. Movant's third proposed cause of action alleges that on October 2, 2009, he was denied the opportunity to place certain personal property within his draft bags at the time he was being transferred out of Southport Correctional Facility, and that said property was subsequently lost and/or destroyed by defendant. Movant's inmate claim was disapproved on December 10, 2009 and again, after appellate review, on January 7, 2010(1) .
Pursuant to Court of Claims Act § 10 (9), a claim by an inmate 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 of Correctional Services. Moreover, such a claim for the recovery of damages for injury to or loss of personal property must be filed and served within one hundred twenty days after the date on which the inmate has exhausted his administrative remedy (Court of Claims Act 10 ). It is well-settled that the requirements of the Court of Claims Act regarding the filing of claims must be strictly construed because the question of timeliness of filing is jurisdictional (see Bush v State of New York, 60 AD3d 1244 [3d Dept 2009]; Matter of Welch v State of New York, 71 AD2d 494, 498 [4th Dept 1979], lv denied 50 NY2d 802 ).
The administrative remedy for inmate personal property claims provides for a two-tier system of administrative review (7 NYCRR 1700.3). Specifically, it provides that inmate personal property claims shall be filed with and reviewed by the deputy superintendent for administration or functional equivalent, or by a claims reviewer designated by the head of the facility (7 NYCRR 1700.3 [a]). It further provides that if an inmate desires further review, he or she may make an appeal to the facility superintendent or designee, or to the central office, depending on whether the claim is for a sum of up to $500.00 or above $500.00 (7 NYCRR 1700.3 [b]). No further administrative review is available after appeal, and the only remaining option for the inmate following such an appeal is to pursue the claim in the Court of Claims (7 NYCRR 1700.3 [b] ).
In the present case, the Court finds that movant has adequately set forth his exhaustion of administrative remedies. However, to the extent movant has failed to file a claim regarding any of the alleged instances of loss or destruction of personal property with this Court within one hundred twenty days after the exhaustion of said administrative remedies, his proposed causes of action are untimely. Moreover, as the Court is without authority to grant late claim relief to claims regarding the loss or destruction of personal property (see Roberts v State of New York, 11 AD3d 1000 [4th Dept. 2004]), movant's application must be denied in its entirety.
May 12, 2010
Albany, New York
JUDITH A. HARD
Judge of the Court of Claims
1. Notice of Motion, and Affirmation of Michael Perkins in Support of Motion For Permission to Late File a Claim, dated February 1, 2010, with Exhibits;
2. Affirmation of Roberto Barbosa, in Opposition to Claimant's Motion for Permission to File a Late Claim, dated March 3, 2010.
1. Although the appeal review is dated December 7, 2009, which predates the original determination on movant's claim, the letter from the Department of Correctional Services advising movant of the result of said appeal, a copy of which is annexed to movant's application as Exhibit N, is dated January 7, 2010.