Bailment claim was dismissed for failure to exhaust administrative remedies.
|Claimant short name:||DAVIS|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :||The caption has been amended sua sponte to reflect the only properly named defendant.|
|Judge:||FRANCIS T. COLLINS|
|Claimant's attorney:||No Appearance|
|Defendant's attorney:||Honorable Eric T. Schneiderman, Attorney General
By: Paul F. Cagino, Esq., Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||April 24, 2018|
|See also (multicaptioned case)|
Defendant moves to dismiss the instant bailment claim pursuant to Court of Claims Act § 10 (9) on the ground claimant failed to exhaust his administrative remedies.
Claimant, a pro se inmate in the custody of the Department of Corrections and Community Supervision, seeks payment for the loss of a pair of sneakers following his transfer to Fishkill Correctional Facility (Fishkill).
Defendant contends that dismissal of the claim is required because claimant failed to exhaust his administrative remedies. In support of this contention, defendant submits an affidavit from Suzette Pettorossi, Institution Steward at Fishkill, in which she avers, based upon her review of the records maintained in that facility, that the claimant's administrative claim was partially approved on November 7, 2013 and that claimant was offered reimbursement in the amount of $45.00. Ms. Pettorossi avers further that claimant "has not properly accepted or rejected said reimbursement offer, nor has he filed an administrative appeal from the said initial review decision" (defendant's Exhibit C, ¶ 4).
Court of Claims Act § 10 (9) requires that "[a] claim of any inmate in the custody of the department of corrections 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." The administrative remedy afforded inmates is set forth in 7 NYCRR part 1700 and provides a two-tier system of administrative review (see 7 NYCRR 1700.3). An inmate claim form (form 1421) should be filed within 5 days following discovery of the loss (7 NYCRR 1700.4 [a]), the initial review must be completed within 15 working days of receipt of the claim by the reviewer (7 NYCRR 1700.4 [b]), and a decision on the claim is required to be issued within three months (7 NYCRR 1700.4 [c]). Further review may be sought by filing an appeal within five working days after initial disapproval of the claim (see 7 NYCRR 1700.4 [d]).
Defendant established through the submission of Ms. Pettorossi's affidavit that claimant failed to exhaust the available administrative claim remedy prior to filing the instant claim. Inasmuch as the failure to exhaust the administrative claim remedy is a jurisdictional defect that may not be waived (Williams v State of New York, 38 AD3d 646 [2d Dept 2007]), the claim must be dismissed.
Accordingly, defendant's motion is granted and the claim is dismissed.
April 24, 2018
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims