Notice of intention does not extend time within which to file and serve an inmate bailment claim (see Court of Claims Act § 10 ).
|Claimant short name:||MATHIS|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||W. BROOKS DeBOW|
|Claimant's attorney:||TERRY MATHIS, Pro se|
|Defendant's attorney:||ERIC T. SCHNEIDERMAN, Attorney General
of the State of New York
By: Jeane L. Strickland Smith, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||October 4, 2017|
|See also (multicaptioned case)|
Claimant, an individual incarcerated in a State correctional facility, filed this claim in which he seeks compensation for personal property that was taken during a cell search at Green Haven Correctional Facility (CF) on September 16, 2014. The claim alleges that claimant filed an administrative claim, and that his administrative remedies were exhausted on December 9, 2014. Claimant filed this judicial claim on April 26, 2017. Defendant has moved in lieu of answer to dismiss the claim on jurisdictional grounds, contending that the claim was not timely filed and served. Claimant opposes the motion.
Court of Claims Act § 11 (a) (1) requires, among other things, that a copy of the claim "shall be served personally or by certified mail, return receipt requested, upon the attorney general" and that such service be effected "within the times hereinbefore provided for filing with the clerk of the court." Court of Claims Act § 10 (9) requires that a bailment claim such as this be filed and served within 120 days of the exhaustion of claimant's administrative remedies. It is well established that failure to file and serve the claim in accordance with the requirements of Court of Claims Act § 11 is a jurisdictional defect that requires dismissal of the claim (see Finnerty v New York State Thruway Auth. 75 NY2d 721, 722-723 ; Spaight v State of New York, 91 AD3d 995 [3d Dept 2012]; Rodriguez v State of New York, 307 AD2d 657 [3d Dept 2003]).
Claimant contends that he timely and properly served a notice of intention, an assertion that defendant does not dispute. Claimant's argument is of no force, however, as the statutory provisions regarding notices of intention and extensions of time to file and serve a claim do not apply to inmates' claims for lost or destroyed property (see Pristell v State of New York, 40 AD3d 1198 [3d Dept 2007]; McTier v State of New York, UID No. 2008-030-511 [Ct Cl, Scuccimarra, J., Mar. 6, 2008]). Thus, the jurisdictional viability of this claim turns on whether the claim itself was timely filed and served.
As noted above, Court of Claims Act § 10 (9) requires this claim to have been filed and served by April 8, 2015, which was 120 days after the date of the exhaustion of claimant's administrative remedies, on December 9, 2014. The claim was not served until March 31, 2017 (see Strickland Smith Affirmation, Exhibit B) and was not filed until April 26, 2017 (see Claim No. 129629). Clearly, the claim was untimely.
Accordingly, it is
ORDERED, that motion number M-90500 is GRANTED, and claim number 129629 is DISMISSED.
October 4, 2017
Saratoga Springs, New York
W. BROOKS DeBOW
Judge of the Court of Claims
(1) Claim number 129629, filed April 26, 2017;
(2) Notice of Motion, dated May 2, 2017;
(3) Affirmation of Jeane Strickland Smith, AAG, dated May 3, 2017, with Exhibits A-B;
(4) Reply of Terry Mathis, sworn to May 23, 2017, with attachment.