Opinion
# 2016-041-012 Claim No. 127076 Motion No. M-87995
03-02-2016
IMHOTEP H'SHAKAv. THE STATE OF NEW YORK
IMHOTEP H'SHAKA Pro Se HON. ERIC T. SCHNEIDERMAN New York State Attorney General By: Paul F. Cagino, Esq. Assistant Attorney General
Synopsis
Defendant's motion to dismiss lost personal property claim based upon claimant's alleged failure to exhaust his administrative remedy is denied where claimant provides uncontradicted proof of having exhausted his administrative remedy.
Case information
| UID: | 2016-041-012 |
| Claimant(s): | IMHOTEP H'SHAKA |
| Claimant short name: | H'SHAKA |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 127076 |
| Motion number(s): | M-87995 |
| Cross-motion number(s): | |
| Judge: | FRANK P. MILANO |
| Claimant's attorney: | IMHOTEP H'SHAKA Pro Se |
| Defendant's attorney: | HON. ERIC T. SCHNEIDERMAN New York State Attorney General By: Paul F. Cagino, Esq. Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | March 2, 2016 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
The defendant moves to dismiss the claim based upon the claimant's alleged failure to exhaust his administrative remedy as required by Court of Claims Act § 10 (9). Claimant opposes the motion.
The claim alleges that the defendant is responsible for the alleged loss of claimant's personal property on August 27, 2015 at Clinton Correctional Facility (Clinton). Defendant offers the affidavit of a Clinton employee asserting that claimant did not file an administrative claim at Clinton with respect to the lost personal property.
Court of Claims Act § 10 (9) provides as follows:
"A claim of any inmate in the custody of the department of correctional services 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."
An inmate seeking damages for lost property must exhaust the administrative remedy established by Department of Correctional Services, which constitutes a non-waivable jurisdictional filing requirement (Williams v State of New York, 38 AD3d 646, 647 [2d Dept 2007]).
In opposition, claimant has provided his affidavit asserting that he exhausted his administrative remedy with respect to the lost personal property and, additionally, offers documentary evidence in support of his affidavit.
Defendant has not submitted a reply to claimant's affidavit in opposition, and, accordingly, has not contradicted claimant's affidavit, and documentary evidence, showing that he exhausted his administrative remedy.
The defendant's motion to dismiss the claim is denied.
March 2, 2016
Albany, New York
FRANK P. MILANO
Judge of the Court of Claims
Papers Considered:
1. Defendant's Notice of Motion to Dismiss, filed February 2, 2016; 2. Affirmation of Paul F. Cagino, dated February 2, 2016, and annexed exhibits; 3. Affidavit of Imhotep H'Shaka, sworn to February 9, 2016, and attached exhibits.