Claimant's application to file a late inmate property claim is denied because Court lacks authority to grant such relief; inmate property claim is dismissed sua sponte for lack of subject matter jurisdiction because claimant failed to exhaust his administrative remedy as required by Court of Claims Act § 10 (9).
|Claimant(s):||MARC A. MASCUZZIO|
|Claimant short name:||MASCUZZIO|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||FRANK P. MILANO|
|Claimant's attorney:||MARC A. MASCUZZIO
|Defendant's attorney:||HON. BARBARA D. UNDERWOOD
New York State Attorney General
By: Ray A. Kyles, Esq.
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||December 13, 2018|
|See also (multicaptioned case)|
Claimant requests permission to file and serve a late inmate property claim. Defendant opposes the application.
The Court lacks statutory authority to grant the relief requested by claimant: "The provisions of Court of Claims Act § 10 (6) that vest the Court of Claims with discretionary authority to permit the filing of a late claim do not apply to inmate property claims" (Encarnacion v State of New York, 133 AD3d 1049, 1050 [3d Dept 2015], lv denied 26 NY3d 919 ; see Roberts v State of New York (11 AD3d 1000, 1001 [4th Dept 2004]).
Claimant filed a claim along with his late claim application and the claim was assigned claim number 132074. The claim is dismissed sua sponte for lack of subject matter jurisdiction because claimant failed to exhaust his administrative remedy prior to filing and serving the 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."
Defendant offers uncontradicted proof that claimant did not exhaust his available administrative remedy prior to filing his claim in the Court of Claims and serving his claim on the Attorney General. Claimant's affidavit in support of his late claim application supports defendant's assertion that claimant has not exhausted his administrative remedy (see paragraphs 8-9 of claimant's affidavit of September 23, 2018).
An inmate seeking damages for lost property must exhaust the administrative remedy established by Department of Correctional Services, which constitutes a non-waivable jurisdictional filing requirement (Williams v State of New York, 38 AD3d 646, 647 [2d Dept 2007]).
Claimant failed to exhaust his administrative remedy with respect to his inmate property claim prior to serving the claim on the Attorney General and prior to filing the claim with the Clerk of the Court of Claims.
The Court lacks subject matter jurisdiction over the inmate personal property claim.
The claim is dismissed.
December 13, 2018
Albany, New York
FRANK P. MILANO
Judge of the Court of Claims
1. Affidavit of Marc A. Mascuzzio in Support of Motion to File a Late Claim, sworn to September 23, 2018, and attached exhibits;
2. Affirmation of Ray A. Kyles in Opposition to File a Late Claim, dated October 29, 2018, and attached exhibit.