Inmate's bailment claim was dismissed for untimely service.
|Claimant short name:||TAYLOR|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||FRANCIS T. COLLINS|
|Claimant's attorney:||Cleon Taylor, Pro Se|
|Defendant's attorney:||Honorable Eric T. Schneiderman, Attorney General
By: Belinda A. Wagner, Esq., Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||March 12, 2018|
|See also (multicaptioned case)|
Claimant, proceeding pro se, moves for summary judgment on his bailment claim pursuant to CPLR 3212. The defendant cross-moves for dismissal pursuant to CPLR 3211 (1), (2), (7) and (8) on the ground the claim was not timely served.
The claim seeks to recover the value of personal property allegedly entrusted to prison employees but not returned to the claimant. Claimant alleges that on August 13, 2016 he was escorted directly to the Special Housing Unit following a disciplinary incident and that the property in his cell was thereafter packed by a correction officer in his absence. On August 19, 2016 claimant was permitted to inspect his property while it was inventoried and discovered that certain items were missing. He filed an administrative claim on August 19, 2016 for $90.98 which was "disapproved" on October 19, 2016 on the ground there was "[n]o evidence found or provided to substantiate claim allegations" (claimant's Exhibit D, p. 2). Claimant filed an administrative appeal which was "disapproved" on November 7, 2016 for the same reason. In response to defendant's interrogatories, claimant indicated that he received the administrative appeal decision "[a]t or around November 16, 2016" (defendant's Exhibit D).
In support of his motion for summary judgment, claimant submits an invoice from Jack L. Marcus company dated March 27, 2013 for the purchase of various items included in the claim; a 2064 form dated June 30, 2015 which allegedly demonstrates the claimant possessed certain items of property upon his transfer from Shawangunk Correctional Facility to Attica Correctional Facility; a 2064 form dated August 16, 2016 which allegedly lists the property collected from the claimant's cell by a correction officer; a Package Room Local Permit for headphones dated April 4, 2015; the administrative claim form and determinations for the loss of claimant's property and Clinton Correctional Facility's response to claimant's FOIL request for various documentation to support his claim. In addition, claimant submits certified mail return receipts reflecting receipt of mail by the Attorney General's Office on October 24, 2016 and March 21, 2017.
Defendant contends in support of its cross motion that the claim was untimely since it was not served until March 21, 2017, more than 120 days after the claim accrued. In support of this contention, defendant submits a copy of the envelope in which the claim was mailed, indicating that it was received in the Office of the Attorney General on March 21, 2017. Notably, this date coincides with the date on one of the two return receipts submitted by the claimant in support of his motion. Claimant indicates in a statement attached to the claim, dated January 13, 2017, that the earlier return receipt card evidencing receipt of an article of mail in the Attorney General's office on October 24, 2016 pertains to a notice of intention to file a claim.(1)
Inasmuch as the cross motion is dispositive, it will be addressed first. Court of Claims Act § 10 (9) requires that an inmate's claim concerning the loss of personal property be filed and served within 120 days following the date on which the inmate exhausted his or her administrative remedy. An inmate is deemed to have exhausted his or her administrative remedy upon receipt of the final administrative appeal determination, since it is not until that date that an inmate is aggrieved by the determination (Matter of Biondo v New York State Bd. of Parole, 60 NY2d 832 ; Scott v State of New York, 137 AD3d 1434 [3d Dept 2016], lv denied 27 NY3d 911 ; Blanche v State of New York, 17 AD3d 1069 [4th Dept 2005]). Here, the claimant exhausted his administrative remedy on November 16, 2016, which is the date he admittedly received a copy of the administrative appeal determination (defendant's Exhibit D). Defendant established that the claim was not served until March 21, 2017, more than 120 days after the claimant exhausted his administrative remedy. "Failure to comply with the statutory filing and service requirements deprives the Court of Claims of subject matter jurisdiction" (Maude V. v New York State Off. of Children & Family Servs., 82 AD3d 1468, 1469 [3d Dept 2011]; see also Miranda v State of New York, 113 AD3d 943 [3d Dept 2014]; Encarnacion v State of New York, 112 AD3d 1003 [3d Dept 2013]). Significantly, "[b]oth filing with the court and service upon the Attorney General must take place within the relevant statutory period" (Caci v State of New York, 107 AD3d 1121 [3d Dept 2013], citing Dreger v. New York State Thruway Auth., 81 N.Y.2d 721, 724 ). Although the instant claim was timely filed on February 27, 2017, it was not served until March 21, 2017. Inasmuch as defendant preserved its objection to claimant's failure to timely serve the claim by raising it with sufficient particularity as a defense in its answer (see Court of Claims Act § 11 [c]; defendant's Exhibit B, Fourth Affirmative Defense), dismissal of the claim is required.
Accordingly, defendant's cross motion is granted and the claim is dismissed. Claimant's motion is denied as academic.
March 12, 2018
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims
1. A notice of intention to file a claim does not extend the time within which an inmate's claim for the loss of personal property must be filed or served (Bush v State of New York, 60 AD3d 1244 [3d Dept 2009]).