Claim No. 124220 dismissed as not served upon Defendant. Claimant's Motion to Amend both Claims denied.
|Claimant(s):||CALVIN REED, 12A4997|
|Claimant short name:||REED|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :||The caption of Claim No. 124220 amended to reflect the State of New York as the proper defendant. The caption of Claim No. 124359 previously amended by Decision and Order of the Court dated September 18, 2014.|
|Claim number(s):||124220, 124359|
|Motion number(s):||M-90590, M-90682|
|Judge:||CHRISTOPHER J. McCARTHY|
|Claimant's attorney:||Calvin Reed, Pro Se|
|Defendant's attorney:||ERIC T. SCHNEIDERMAN
Attorney General of the State of New York
By: Douglas R. Kemp, Esq., AAG
Paul F. Cagino, Esq., AAG
|Third-party defendant's attorney:|
|Signature date:||October 30, 2017|
|See also (multicaptioned case)|
For the reasons set forth below, Defendant's Motion (Motion No. M-90590) to dismiss Claim No. 124220 based upon lack of jurisdiction is granted and Claimant's Motion (Motion No. M-90682) to amend Claim Nos. 124220 and 124359 is denied.
Pro se Claim No. 124220, which was filed with the office of the Clerk of the Court on April 15, 2014, alleges that, on January 23, 2014, a search of Claimant's cube area at Franklin Correctional Facility was performed when he was at his "Program" (Claim, ¶ 2). When Claimant returned, he discovered his net bag containing his commissary items and his lock were missing. Claimant seeks damages for the loss of his property.
Court of Claims Act § 11(a)(i) provides that the Claim shall be filed with the Clerk of the Court and that a copy shall be served upon the Attorney General within the time period provided in the Court of Claims Act, either personally or by certified mail, return receipt requested. Pursuant to Court of Claims Act provisions applicable to inmate bailment claims (Court of Claims Act § 10 ), a claim by an inmate for the loss of personal property may not be filed and served until the inmate has exhausted the administrative remedies established by the Department of Corrections and Community Supervision. The inmate must then file and serve his claim within 120 days after the date the inmate's administrative remedies have been exhausted. The statutory requirements conditioning suit must be strictly construed (Dreger v New York State Thruway Auth., 81 NY2d 721, 724 ; Rodriguez v State of New York, 307 AD2d 657 [3d Dept 2003]).
Defendant submitted the Affirmation of Assistant Attorney General Douglas R. Kemp, Esq., in support of its Motion (hereinafter, "Kemp Affirmation"). Mr. Kemp states that his office was advised the above Claim No. 124220 had been filed with the Court of Claims when it received a letter from the Clerk of the Court acknowledging the Court's receipt of the Claim on April 15, 2014 (Kemp Affirmation, ¶ 5). In further support of its Motion, Defendant submitted an Affidavit of Debra L. Mantell, a Legal Assistant II in the Albany Office of the Attorney General (Kemp Affirmation, Ex. A). Ms. Mantell attests that she is familiar with the electronic record-keeping system maintained by the Attorney General's Office regarding notices of intention to file claims and claims that are received in the Attorney General's Office. She further attests that, following a thorough search of the records of the Attorney General's Office, she found no record that Claim No. 124220 was served on the Attorney General (Mantell Affidavit, ¶¶ 2, 3[a]). However, an "identical [C]laim served by [C]laimant herein alleging the same incident was located in Claim number 124359, which was dismissed on October 8, 2014" (id., ¶ 3[b]).
The Court finds that Defendant has offered sufficient proof in support of its Motion to establish that Claim No. 124220 was not served upon the Attorney General. Claimant submitted a letter to the Court in opposition to the Motion but did not address the merits of Defendant's Motion. Accordingly, the Court is compelled to find that it lacks jurisdiction pursuant to Court of Claims Act § 11(a)(i). The Motion to dismiss is granted and Claim No. 124220 is dismissed.
Claimant has moved to amend Claim Nos. 124220 and 124359 (Motion No. M-90682). Turning first to Claim No. 124220, a Claim that suffers from a fatal jurisdictional defect cannot be cured by amendment (see Manshul Constr. Corp. v State Ins. Fund, 118 AD2d 983, 985 [3d Dept 1986]; Grande v State of New York, 160 Misc 2d 383, 385 [Ct Cl 1994]; Flemming v State of New York, UID No. 2012-038-564 [Ct Cl, DeBow, J., Sept. 25, 2012]). Here, it is alleged by Defendant that the Claim was not served upon Defendant in accordance with Court of Claims Act §10(9) and § 11(a)(i) which is a jurisdictional defect. As the Court has granted Defendant's Motion No. M-90590 to dismiss the Claim, this portion of the Motion to Amend is denied.
Turning now to Claim No. 124359, the Claim alleging the same facts as Claim No. 124220, was dismissed by this Court, finding that, as of the date Claimant filed and served that Claim (May 14, 2014), he had not exhausted his administrative remedies and, as such, the Claim is premature pursuant to CCA § 10(9) (Reed v State of New York, UID No. 2014-040-045 [Ct Cl, McCarthy, J., Sept. 18, 2014]). A claim that has been dismissed cannot be amended. Therefore, this portion of the Motion to Amend also is denied.
October 30, 2017
Albany, New York
CHRISTOPHER J. McCARTHY
Judge of the Court of Claims
The following papers were read and considered by the Court on Defendant's Motion to Dismiss and Claimant's Motion to Amend:
Defendant's Notice of Motion (M-90590),
Affirmation in Support & Exhibit attached 1
Claimant's Letter dated July 6, 2017 2
Claimant's Notice of Motion (M-90682) 3
Affirmation in Opposition of Paul F. Cagino, Esq.
Assistant Attorney General & Exhibit attached 4
Filed papers: Claims, Answer (Claim No. 124359)