Opinion
# 2014-040-045 Claim No. 124359 Motion No. M-85386
09-18-2014
CALVIN REED, 12A4997 v. THE STATE OF NEW YORK
Calvin Reed, Pro Se ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Paul F. Cagino, Esq., AAG
Synopsis
Prisoner bailment Claim dismissed as Claimant failed to exhaust his administrative remedies prior to commencing this action in accord with CCA § 10(9). Also, Claimant failed to serve the Claim upon the Attorney General.
Case information
| UID: | 2014-040-045 |
| Claimant(s): | CALVIN REED, 12A4997 |
| Claimant short name: | REED |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | Caption amended to reflect the State of New York as the proper defendant. |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 124359 |
| Motion number(s): | M-85386 |
| Cross-motion number(s): | |
| 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: Paul F. Cagino, Esq., AAG |
| Third-party defendant's attorney: | |
| Signature date: | September 18, 2014 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
For the reasons set forth below, the State's motion to dismiss the Claim based upon Claimant's failure to exhaust his administrative remedies prior to serving and filing the Claim, in accordance with Court of Claims Act (hereinafter CCA) § 10(9), and for failure to comply with the service requirements of Court of Claims Act §§ 10 and 11, is granted.
This pro se Claim, which was filed with the Clerk of the Court on May 14, 2014, alleges that, on January 23, 2014, while Claimant was at his assigned program at Franklin Correctional Facility located in Malone, New York (hereinafter "Franklin"), a search of Claimant's cell was conducted. Claimant asserts that, when he returned to his cell, he found that certain of his commissary items were missing, as was his net bag and a lock.
Defendant moves for dismissal of this bailment claim on the basis that Claimant has failed to exhaust his administrative remedies pursuant to CCA § 10(9) as of the date the Claim was filed. CCA § 10(9) provides 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. Such claim must be filed and served within one hundred twenty days after the date on which the inmate has exhausted such remedy.
The State's papers include the Affidavit of Karen A. Loeb, who is employed as the Institution
Steward at Franklin and whose duties include answering inquiries from the Attorney General's office relating to inmate records at the facility. Ms. Loeb avers that Claimant did not file an inmate property claim at Franklin in or around January 2014 (Loeb Affidavit, ¶¶ 1-3; Ex. C attached to Motion). Claimant has not submitted any opposition papers and, thus, Ms. Loeb's assertions are uncontroverted, despite the fact an Inmate Claim form dated January 26, 2014 is attached to the Claim. There is no indication that the Inmate Claim form was ever received by any State employee at Franklin or any other State facility.
The Department of Corrections and Community Supervision has established a two-tier system for handling personal property claims consisting of an initial review and an appeal (7 NYCRR 1700.3). Each of these "separate and distinct steps must be completed at the time a claim is filed and served in order for a claimant to be deemed to have exhausted his [or her] administrative remedies pursuant to CCA § 10(9)" (Tafari v State of New York, UID No. 2002-019-591 [Ct Cl, Lebous, J., Dec. 9, 2002]; see Griffin v State of New York, UID No. 2007-015-232 [Ct Cl, Collins, J., Aug. 23, 2007]). The State argues that Claimant filed and served this Claim before he exhausted those administrative remedies (Affirmation of Paul F. Cagino, Esq., ¶ 8).
On the record before the Court, the only one conclusion that can be reached is that, as of the date Claimant filed and served this Claim (May 14, 2014), he had not exhausted his administrative remedies and, as such, this Claim is premature pursuant to CCA § 10(9) (see Griffin v State of New York, supra; Tafari v State of New York, supra).
Defendant also seeks dismissal of the Claim based upon Claimant's failure to properly serve the Claim upon the Attorney General in accordance with Court of Claims Act § 11(a)(i). As pertinent to the instant matter, Court of Claims Act § 11(a)(i) provides that the Claim be served personally or by certified mail, return receipt requested, upon the Attorney General within the time period provided in Court of Claims Act § 10(9).
In his affirmation submitted in support of the Motion, Defense counsel asserts that, on or about May 14, 2014, Claimant served the Claim upon the Attorney General by regular mail (Affirmation of Paul F. Cagino, Esq., ¶ 12 & Ex. A attached thereto). In reviewing Exhibit A, which includes a photocopy of the envelope in which the Claim was purportedly mailed, the Court notes that the postage amounted to $.69 and that there is no certified mail or return receipt sticker affixed to the envelope. Moreover, Claimant failed to oppose the Motion and controvert Defendant's assertions or provide evidence that the Claim was properly served upon the State.
The failure to properly serve the Attorney General gives rise to a defect in jurisdiction which, if not raised with particularity, is subject to the waiver provisions of Court of Claims Act § 11(c) (see Finnerty v New York State Thruway Auth., 75 NY2d 721, 723 [1989]; Matter of Dreger v New York State Thruway Auth., 177 AD2d 762, 763 [3d Dept 1991], affd 81 NY2d 721 [1992]; Suarez v State of New York, 193 AD2d 1037, 1038 [3d Dept 1993]; Knight v State of New York, 177 Misc 2d 181, 183 [Ct Cl 1998]).
Section 11 of the Court of Claims Act constitutes a jurisdictional prerequisite to the institution and maintenance of a claim against the State and, thus, must be strictly construed (Buckles v State of New York, 221 NY 418 [1917]; Ivy v State of New York, 27 AD3d 1190 [4th Dept 2006]; Byrne v State of New York, 104 AD2d 782 [2d Dept 1984], appeal denied 64 NY2d 607 [1985]). The Court cannot waive a defect in jurisdiction that has been timely raised (Thomas v State of New York, 144 AD2d 882 [3d Dept 1988]). Defendant timely and properly raised, with particularity, its defense that the Claim was delivered by ordinary mail, not served personally or by certified mail, return receipt requested, as required by Court of Claims Act § 11 in its Answer (dated May 27, 2014) as its third defense. Therefore, the Court concludes that Defendant established that the Claim was improperly served upon it.
For the foregoing reasons, Defendant's motion is granted and the Claim is dismissed.
September 18, 2014
Albany, New York
CHRISTOPHER J. McCARTHY
Judge of the Court of Claims
The following papers were read and considered by the Court on the State's motion to dismiss the Claim:
Papers Numbered
Notice of Motion, Affirmation,
and Exhibits Attached 1
Filed Papers: Claim, Answer