|Claimant short name:||COVINGTON|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||JUDITH A HARD|
|Claimant's attorney:||Ronnie Covington, Pro Se|
|Defendant's attorney:||Hon. Eric T. Schneiderman, NYS Attorney General
By: Glenn C. King, Assistant Attorney General,
|Third-party defendant's attorney:|
|Signature date:||October 6, 2017|
|See also (multicaptioned case)|
Defendant moves this Court for an order pursuant to CPLR 3211 (a) (2) and (8), and Court of Claims Act § 10 (9), dismissing the claim on the ground that claimant failed to exhaust his administrative remedies prior to filing and serving the claim. Claimant has not submitted any papers in opposition to said motion. For the reasons set forth below, defendant's motion to dismiss is denied.
The underlying claim sounds in bailment and alleges that, on July 31, 2014, seven packs of cigarettes and two pouches of rolling tobacco belonging to claimant were improperly confiscated from claimant in retaliation for his filing of claims against Department of Corrections and Community Supervision (DOCCS) employees.
Pursuant to Court of Claims Act § 10 (9), a claim of any inmate in the custody of the Department of Correctional Services and Community Supervision 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 (Court of Claims Act § 10 ). Compliance with the filing and service requirements contained in sections 10 and 11 of the Court of Claims Act is a jurisdictional prerequisite to bringing and maintaining an action in the Court of Claims (Buckles v State of New York, 221 NY 418 ), and failure to comply constitutes a fatal jurisdictional defect requiring dismissal (Thomas v State of New York, 144 AD2d 882 [3d Dept 1988]; Finnerty v New York State Thruway Auth., 75 NY2d 721 ; Dreger v New York State Thruway Auth., 177 AD2d 762 [3d Dept 1991], affd 81 NY2d 721 ; Suarez v State of New York, 193 AD2d 1037 [3d Dept 1993]).
Here, defendant's Exhibit A, which defendant identifies as claim number 125594 in this matter, is not the same claim as the Court's claim number 125594. Indeed, a review of defendant's exhibits reveals that the claim attached as Exhibit A to defendant's affirmation in support of the motion to dismiss, concerns a bailment claim that accrued on March 26, 2014. The Inmate Claim Form attached to defendant's Exhibit A provides that postage stamps, an extension cord, and an electric fan were improperly confiscated from claimant. In contrast, the claim in the Court's file for claim number 125594 accrued on July 31, 2014 and asserts that cigarettes and rolling tobacco were improperly confiscated from claimant. The Inmate Claim Form attached to the claim in the Court's file was assigned facility claim number 370-0150-14. The facility claim number on the Inmate Claim Form contained in defendant's Exhibit A is 370-0040-14. Defendant argues that the exhibits establish that claimant failed to exhaust his administrative remedies, however the exhibits concern a facility claim number entirely different from the facility claim number assigned to the Inmate Claim Form attached to the claim in the Court's possession. Accordingly, the Court cannot determine from the papers submitted in support of defendant's motion whether claimant exhausted administrative remedies before filing the claim.(1)
Accordingly, defendant's motion (M-90094) is denied, without prejudice.
October 6, 2017
Albany, New York
JUDITH A HARD
Judge of the Court of Claims
1. Verified Claim, filed on January 29, 2015.
2. Notice of Motion to Dismiss and Affirmation in Support of Motion to Dismiss, sworn to by Glenn C. King, AAG, on March 20, 2017, with exhibits.
1. The Court notes that claimant filed three bailment claims with the Court in January 2017, none of which appear to match the claim attached as defendant's Exhibit A. Claim number 125533 alleged that electric trimmers, tobacco, tweezers, and nail clippers were improperly confiscated from claimant. Claim number 125593 alleged that candy bars were improperly confiscated from claimant. Claim number 125594, the instant claim, alleged that cigarettes and rolling papers were improperly confiscated by claimant.