|Claimant short name:||WILLIAMS|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||MAUREEN T. LICCIONE|
|Claimant's attorney:||OZAN WILLIAMS, pro se|
|Defendant's attorney:||HON. LETITIA JAMES, ATTORNEY GENERAL
By: Dorothy M. Keogh, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||August 23, 2019|
|See also (multicaptioned case)|
By claim filed May 15, 2019, the claimant ("Claimant" or "Williams") an inmate confined to a New York State correctional facility, proceeding pro se, alleges that as a result of a cell search by correction officers ("CO's") on October 2, 2018 his personal property, including "legal work," was destroyed and discarded "in the trash." The defendant ("Defendant" or "State") has filed a pre-answer motion to dismiss the claim pursuant to Court of Claims Act §§ 10 and 11, and CPLR 3211 (a) (2), arguing that Claimant failed to exhaust his administrative remedies and, in the alternative, if it is found that Claimant did exhaust his administrative remedies, that he then failed to serve a claim within the requisite 120 day period set forth in Court of Claims Act §10 (9) ("Section 10 (9)"). Claimant opposes the motion.(1)
In order to maintain a claim for lost or destroyed property, an inmate is first required to comply with Court of Claims Act § 10 (9), which provides:
"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. Such claim must be filed and served within one hundred twenty days after the date on which the inmate has exhausted such remedy."
DOCCS' administrative remedy procedures for inmate property claims are set forth in 7 NYCRR Part 1700. Section 1700.3 provides for two-tier administrative review process for inmate personal property claims, which consists of an initial review and an appeal (7 NYCRR 1700.3). "The initial review is conducted by the deputy superintendent for administration or functional equivalent, or by a claims reviewer designated by the head of the facility" (7 NYCRR 1700.3 [a]). Once the initial determination is made and the inmate is notified of the determination, the inmate may pursue the second step, which is an appeal. Depending on the dollar amount of the claim, appeals may be made either to the facility superintendent, or central office (7 NYCRR 1700.3 [b]  and ). 7 NYCRR 1700.3 (b) (4) provides that there is no further administrative review after such an appeal is taken and the remaining option is for the inmate to pursue the claim in the Court of Claims.
A claimant must complete both steps in the two-tier process in order to exhaust his administrative remedies pursuant to Section 10 (9), and such requirement is a condition precedent to bringing a claim against the State (Williams v State of New York, 38 AD3d 646 [2d Dept 2007]). "For accrual purposes, a claimant is deemed to have exhausted all of his or her administrative remedies on the date on which he or she received notice of the final administrative determination" (Scott v State of New York, 137 AD3d 1434 [3d Dept 2016], lv denied 27 NY3d 911 ; see also Blanche v State of New York, 17 AD3d 1069 [4th Dept 2005]).
The record before the Court is not clear. Attached to the claim is an Inmate Claim Form, dated October 2, 2018 (Facility Claim # 070-0096-18), regarding the damaged property. The claim herein contains no information about the disposition of his property claim, or whether it was appealed, and if so the date he received the final determination. The claim merely states that the claim accrued on October 2, 2018 and that this claim was "submitted within 120 days after the final decision was rendered pursuant to the Court of Claims Act 10 (9)" (Claim, pg. 2). In opposition to Defendant's motion, Williams maintains that on December 27, 2019 [sic] the Institutional Claims Officer denied his facility concerning the destruction of his property (Cl. "Reply" ¶ 9). In this regard, Williams cites to Exhibit B that is attached to this submission, which is a Claim Investigation Report, dated January 16, 2019, that recommended disapproving the claim ("Reply", Ex. B).
Claimant goes to discuss a grievance that was filed by him concerning the same incident. He attaches as an exhibit an Inmate Grievance Program Superintendent form, that was filed on November 23, 2018, with a disposition date of February 22, 2019 ("Reply" Ex. A). The title of the grievance is listed as "Search & Seizure/Frisks/Contraband," with the notation that "Grievant states several items were damaged and missing after a cell search" (id.). The grievance was denied and stated that "grievant filed an inmate claim for the alleged missing and damaged property. Claim # 070-0096-18 was filed, investigated and disapproved 1/16/19" (id.).
Claimant appears to argue that a decision on his appeal of the denial of his grievance was not made within 30 days from the time the appeal was received, as required by 7 NYCRR 701.5, and, therefore, he should be excused from exhausting his administrative remedies. Claimant, however, may be conflating his inmate property claim with his grievance and the requirments required in Section 10 (9). While Claimant may have pursued an administrative appeal through the inmate grievance program (see 7 NYCRR Part 701), that does not equate with exhausting the "personal property claims administrative remedy" in accordance with the procedures set forth in 7 NYCRR 1700.3, as required by Court of Claims Act § 10 (9) (see Delosantos v State of New York, UID No. 2018-038-591 [Ct Cl, DeBow, J., Nov. 9, 2018] [documents indicate that claimant sought administrative redress via the inmate grievance program, but they do not demonstrate that he exhausted the administrative review for inmate personal property claims]).
It is unclear whether Williams file an administrative appeal for his inmate property claim, or didn't he, and if so, what was the date on which he was informed of the outcome. The State did not submit a reply in which it might have clarified the record, since it should have access to the relevant information that would support its application; i.e. the property claim itself, the disposition, and if there was an appeal, the date the determination was transmitted to claimant (cf. Paladino v State of New York, UID No. 2005-036-102 [Ct Cl, Schweitzer, J., Sept. 15, 2005]). Without a reply, the Court is left with Defendant's arguments that since there is no allegation within the four corners of the initial claim that Williams exhausted all of his administrative remedies and that the claim was untimely because he did not set forth the date he received the final determination of an appeal.
However, a claimant "need not affirmatively plead that administrative remedies have been exhausted" (Boyd v State of New York, UID No. 2004-030-033 [Ct Cl, Scuccimarra, J. 2004], citing, Edwards v State of New York, UID No. 2002-013-012 [Ct Cl, Patti, J. 2002]); and
while a claimant bears the ultimate burden to "establish at trial that he complied with [the] jurisdictional filing requirement" (Williams v State of New York, supra, at 647) set forth in Section 10 (9), it is the Defendant that bears the burden of proof to establish this jurisdictional defect on a pre answer motion to dismiss (see McQuilkin v State of New York, UID No. 2009-018-016 [Ct Cl, Fitzpatrick, J., Mar. 18, 2009]). Similarly, with respect to Defendant's argument that Williams failed to serve a claim within the requisite 120 day period set forth in Court of Claims Act §10 (9), the State proffers no evidence that supports this contention. The Court therefore finds the record is insufficient to grant Defendant's pre-answer motion. (see e.g. Thompson v State of New York, UID No. 2019-028-530 [Ct Cl, Sise, P.J. May 23, 2019] [it is "preferable that the State's submission on a motion to dismiss on these jurisdictional grounds include an affidavit by a person with knowledge"]).
In view of the foregoing, Defendant's pre-answer motion to dismiss is denied without prejudice because the State did not meet its burden. It is ORDERED that Defendant shall submit an answer to the claim within thirty (30) days of the filing of this decision and order.
Central Islip, New York
August 23, 2019
MAUREEN T. LICCIONE
Judge to the Court of Claims
The following papers were read and considered on this motion:
1. Defendant's Notice of Motion to Dismiss; Affirmation in Support Defendant's Motion to Dismiss by Dorothy M. Keogh, AAG, dated June 12, 2019, and attached exhibit.
2. Claimant's "Reply to Defendants' Motion to Dismiss," and attached exhibits.
3. Claim filed May 15, 2019 and attached exhibits.
August 23, 2019
Central Islip, New York
MAUREEN T. LICCIONE
Judge of the Court of Claims
1. Williams' opposition (labeled "reply") is unsigned. Both this Court and the Supreme Court have accepted unsigned motion papers from litigants appearing pro se (See, e.g., Fauci v. Sucarto, 2012 NY Slip Op 33333 [Sup Ct NY Cty, 2012, Feinman, J.]; Arlotta v. State of New York, UID # 2017-015-293, Claim No. 128141, Motion Nos. M-91313 [Collins, J. 2017]).