The defendant's pre-answer motion to dismiss claimant's bailment claim granted on grounds the claim was untimely filed and served pursuant to Court of Claims Act §§ 10 (9) and 11(a), and the time in which to do so has expired.
|Claimant short name:||HINES|
|Footnote (claimant name) :|
|Defendant(s):||STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||DEBRA A. MARTIN|
|Claimant's attorney:||NO APPEARANCE|
|Defendant's attorney:||HON. LETITIA JAMES
New York State Attorney General
BY: GLENN C. KING, ESQ.
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||December 9, 2020|
|See also (multicaptioned case)|
The following papers were read on defendant's motion to dismiss the claim:
1. Notice of Motion with attached Affirmation of Glenn C. King, AAG, with attached exhibit, filed March 12, 2020;
2. Filed papers: claim.
Before the Court is the defendant's pre-answer motion to dismiss pro se claimant's bailment claim on the grounds that he never timely filed and served his claim in compliance with Court of Claims Act §§ 10 (9) and 11(a). Therefore, the claimant never secured jurisdiction to enable the Court to hear his claim and the time to do so has expired. Claimant did not file a response to the motion. For the reasons set forth below, the Court grants the defendant's motion and dismisses the claimant's claim, with prejudice.
In his bailment claim, claimant alleged that on August 5, 2018 he surrendered his property bag to the Department of Corrections and Community Supervision (DOCCS) when he was transferred from Upstate Correctional Facility to Clinton Correctional Facility and it was never returned to him. Claimant filed a facility claim on November 30, 2018. On March 25, 2019 claimant received a response that his property was destroyed because he lacked sufficient funds to pay the shipping costs pursuant to DOCCS' policy. Claimant filed an appeal on March 28, 2019. On September 22, 2019, claimant alleged he received a settlement offer of $70, which he rejected.
On June 18, 2019, defendant received from claimant by certified mail return receipt requested a notice of intention to file a bailment claim. Claimant did not serve his bailment claim upon the Office of Attorney General by certified mail return receipt requested until February 3, 2020 and did not file it with the Clerk of the Court until March 2, 2020.
Bailment claims are governed by Court of Claims Act § 10 (9). This provision states:
"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."
Under the circumstances set forth above and relying upon the only date claimant provided in his claim, the Court deems the 120-day period for claimant to file his claim commenced on September 22, 2019. (Gagne v State of New York, UID No. 2006-044-005 [Ct Cl, Schaewe, J., Dec. 19, 2006].) Accordingly, claimant had until January 20, 2020 to file and serve his claim. Claimant did not served his claim upon the Office of Attorney General until February 3, 2020 and did not file his claim until March 2, 2020, both dates being beyond the statutory time frame. (Young v State of New York, 138 AD3d 1357, 1358 [3d Dept 2016].) Although the claimant served a notice of intention upon the Office of the Attorney General on June 18, 2019, the Court of Claims Act does not authorize the service of a notice of intention to extend the time to file and serve a lost property claim. (Court of Claims Act §10 ; see also Young v State of New York, 138 AD3d 1357, 1358 [3d Dept 2016]; Bush v State of New York, 60 AD3d 1244, 1245 [3d Dept 2009]; see also Pristell v State of New York, 40 AD3d 1198, 1198-1199 [3d Dept 2007].)
Court of Claims Act § 10 is not merely a statute of limitations. It constitutes a jurisdictional prerequisite to commencing a viable action in the Court of Claims. "Failure to timely comply with the statutory [service] requirements of the Court of Claims Act constitutes a fatal jurisdictional defect requiring dismissal. The Court cannot waive a defect in jurisdiction that has been timely raised." (Tolliver v State of New York, UID No. 2009-040-053 [Ct Cl, McCarthy, J., July 9, 2009] [internal citations omitted].) Claimant's failure to strictly comply with the statutory requirements contained in Court of Claims Act 10 (9) deprived the Court of jurisdiction over the claim. (Lepkowski v State of New York, 1 NY3d 201, 206-207 .) Accordingly, the Court has no alternative than to grant the defendant's motion and dismiss the claim.
Based upon the foregoing, defendant's motion to dismiss (M-95895) is granted and Claim No. 134555 is dismissed with prejudice for lack of jurisdiction.
December 9, 2020
Rochester, New York
DEBRA A. MARTIN
Judge of the Court of Claims