Defendant's motion for summary judgment dismissing the claim is granted. Claimant, an inmate proceeding pro se, asserted a claim seeking damages for the loss of property but failed to exhaust his administrative remedies.
|Claimant short name:||MORALES|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||J. DAVID SAMPSON|
|Claimant's attorney:||CARMELO MORALES, Pro Se|
|Defendant's attorney:||HON. BARBARA D. UNDERWOOD
New York State Attorney General
BY: Wendy E. Morcio, Esq.
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||October 31, 2018|
|See also (multicaptioned case)|
Claimant Carmelo Morales, an inmate proceeding pro se, seeks damages in claim no. 126399 for the loss of his personal property on March 6, 2015, while incarcerated at Gowanda Correctional Facility (Gowanda). Defendant moves for summary judgment, dismissing the claim for claimant's failure to exhaust his administrative remedies. This defense was raised with particularity in defendant's answer. Claimant opposes the motion.
Court of Claims Act § 10 (9) provides that a "claim of any inmate in the custody of the department of corrections and community supervision [DOCCS] 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 referred to in the Court of Claims Act is set forth in 7 NYCRR part 1700 and in DOCCS Directive 2733 and provides for a two-tier system of administrative review consisting of an initial review and an appeal. Both of these separate administrative steps must be completed before a claim is filed and served in order for a claimant to be deemed to have exhausted his administrative remedy (Edwards v The State of New York, UID No. 2016-040-068 [Ct Cl, McCarthy, J., Sept. 20, 2016]; Tafari v State of New York, UID No. 2002-019-591 [Ct Cl, Lebous, J., Dec. 9, 2002]).
Court of Claims Act § 10 is more than a statute of limitations, it is a jurisdictional prerequisite to bringing and maintaining an action in this Court (Mallory v State of New York, 196 AD2d 925, 926 [3d Dept 1993]; DeMarco v State of New York, 43 AD2d 786 [4th Dept 1973], affd 37 NY2d 735 ). The failure to exhaust both steps of the administrative review prior to commencing an action in this Court is a jurisdictional defect that requires dismissal of the claim (Williams v State of New York, 38 AD3d 646 [2d Dept 2007]).
Claimant submitted his Inmate Claim Form, facility claim no. 450-0119-14, on March 24, 2015, thus completing the first step of his administrative remedy. Claimant's initial review was disapproved as being untimely. Claimant did not then appeal this initial administrative step and, thus, failed to exhaust his administrative remedy prior to filing and serving this claim (see Defendant's Exhibit C). Accordingly, the claim is jurisdictionally defective and must be dismissed (Davis v State of New York, UID No. 2018-015-120 [Ct Cl, Collins, J., April 24, 2018]).
Based on the foregoing, defendant's motion no. M-92714 is granted and claim no. 126399 is dismissed.
October 31, 2018
Buffalo, New York
J. DAVID SAMPSON
Judge of the Court of Claims
The following were read and considered by the Court:
1. Notice of motion and affirmation of Assistant Attorney General Wendy E. Morcio dated August 13, 2018, with annexed Exhibits A-C; and
2. Opposing affidavit of Carmelo Morales sworn to September 26, 2018.