Opinion
# 2015-029-036 Claim No. 124545 Motion No. M-86337
05-15-2015
KAIRIS v. THE STATE OF NEW YORK
PAUL KAIRIS, pro se ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL By Belinda A. Wagner, Assistant Attorney General
Synopsis
Defendant's motion to dismiss one bailment claim is granted because he failed to comply with the DOCCS administrative remedy but the motion to dismiss the second claim is denied because the findings of defendant's administrative officer may not be used in support of a dismissal motion and claimant need not submit proof in support of his claim, proof that the administrative findings were erroneous, until trial.
Case information
| UID: | 2015-029-036 |
| Claimant(s): | PAUL KAIRIS |
| Claimant short name: | KAIRIS |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 124545 |
| Motion number(s): | M-86337 |
| Cross-motion number(s): | |
| Judge: | STEPHEN J. MIGNANO |
| Claimant's attorney: | PAUL KAIRIS, pro se |
| Defendant's attorney: | ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL By Belinda A. Wagner, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | May 15, 2015 |
| City: | White Plains |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Defendant moves to dismiss the claim, which consists of two distinct causes of action, on the grounds that it was not timely filed or served (first cause of action) and that it fails to state a cause of action (second cause of action). Claimant, an inmate at Wallkill Correctional Facility, opposes the motion.
In the first cause of action, claimant seeks damages for a keyboard that was confiscated from him upon his transfer from Wende C.F. to Shawangunk C.F. Claimant was advised on January 21, 2014 that the keyboard was not authorized and on February 13, 2014 he incurred costs in disposing of it. The nature of the claim is that the keyboard was mistakenly approved in the first place and he seeks recovery of the cost of the keyboard and shipping costs.
Defendant's motion to dismiss this cause of action is based on the fact that the claim was not served and filed until June 6 and June 19, 2014, respectively, more than 90 days following what is alleged to be the accrual date - January 21, 2014 - and indeed more than 90 days following February 13, 2014 when the keyboard was shipped for disposal.
In response to this aspect of the motion, claimant contends that the timeliness of the claim is not governed by the 90-day standard but rather by Court of Claims Act section 10 (9), governing claims for loss of or damage to property. He references an institutional claim that he brought which is attached to defendant's motion papers (Ex. D), notes that the final determination of that claim was on May 19, 2014 and contends that pursuant to the statute he has 120 days from that final determination in which to interpose a claim. However, that property claim had nothing to do with the keyboard that is that is the subject of the first cause of action, rather it relates to the package that is the subject of the second cause of action - completely distinct. There is no indication that claimant ever filed a property claim with respect to the keyboard. Thus, to the extent section 10 (9) applies, the cause of action must be dismissed because claimant failed to exhaust his administrative remedy. To the extent it is simply a tort claim, it was as defendant maintains not interposed in a timely manner. Either way, it is untimely and it is dismissed for that reason.
Defendant's motion with respect to the second cause of action, for a package that was allegedly not delivered to him, appears to be based on the theory that the court, in a claim brought pursuant to section 10 (9), is bound by the findings of defendant's administrative evaluators, since it is based on the contention that claimant "failed to establish" the elements of his cause of action and specifically based on the findings in the administrative proceeding. Somehow, on this motion to dismiss for failure to state a cause of action, defense counsel argues that "claimant has failed to show" crucial elements of his cause of action and that "no proof has been presented" as to what was in the package, making it impossible to evaluate the claim. There has been no trial yet. Claimant has not had the opportunity to show anything or present any proof, nor does he have the obligation to do so. It is at this point defendant's burden to show that claimant does not possess a cause of action as a matter of law. The findings of defendant's employees made for the purpose of determining his institutional claim are utterly irrelevant to any inquiry before this court, where the factual picture begins with a tabula rasa, not with some burden upon the claimant to disprove those findings. At trial, the burden of proof will be on claimant to establish his cause of action. At this point, seeking summary dismissal prior to trial, the burden is all on the defendant, a burden it did not meet with respect to the second cause of action.
Accordingly, the motion is granted to the extent that the first cause of action is dismissed and the motion is denied with respect to the second cause of action.
May 15, 2015
White Plains, New York
STEPHEN J. MIGNANO
Judge of the Court of Claims
Papers considered:
Notice of Motion, Affirmation and Exhibits
Claimant's Unsworn Submission in Opposition