Opinion
# 2016-040-064 Claim No. 127523 Motion No. M-88447 Cross-Motion No. CM-88597
09-19-2016
JERMAINE McLEAN v. THE STATE OF NEW YORK
Jermaine McLean, Pro Se ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Paul F. Cagino, Esq., AAG
Synopsis
Claimant's motion for summary judgment denied. State's cross-motion to dismiss inmate bailment claim for failure to exhaust administrative remedies in accord with CCA § 10(9) granted.
Case information
| UID: | 2016-040-064 |
| Claimant(s): | JERMAINE McLEAN |
| Claimant short name: | McLEAN |
| 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): | 127523 |
| Motion number(s): | M-88447 |
| Cross-motion number(s): | CM-88597 |
| Judge: | CHRISTOPHER J. McCARTHY |
| Claimant's attorney: | Jermaine McLean, 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 19, 2016 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
For the reasons set forth below, Claimant's Motion for summary judgment in his favor is denied and the State's Cross-Motion to dismiss on the basis that Claimant failed to exhaust his administrative remedies prior to serving and filing the Claim, in accordance with Court of Claims Act (hereinafter, "CCA") § 10(9), is granted.
This pro se Claim, which was filed with the Clerk of the Court on February 16, 2016, alleges that, on June 25, 2015 and July 20, 2015, at Greene Correctional Facility, certain items of Claimant's personal property were lost or stolen.
Summary judgment is a drastic remedy to be granted sparingly and only where no material issue of fact is demonstrated in the papers related to the motion (see Crowley's Milk Co. v Klein, 24 AD2d 920 [3d Dept 1965]; Wanger v Zeh, 45 Misc 2d 93 [Sup Ct, Albany County 1965], affd 26 AD2d 729 [3d Dept 1966]). CPLR 3212(b) requires that a motion for summary judgment be supported by a copy of the pleadings (Capelin Assoc. v Globe Mfg. Corp., 34 NY2d 338 [1974]). In support of his motion, Claimant did not submit a copy of the Claim or the Verified Answer. The failure to include all the pleadings in support of a motion for summary judgment requires that the motion be denied, regardless of the merits of the motion (Senor v State of New York, 23 AD3d 851 [3d Dept 2005]; Bonded Concrete, Inc. v Town of Saugerties, 3 AD3d 729 [3d Dept 2004], lv dismissed 2 NY3d 793 [2004]; Deer Park Assocs. v Robbins Store, 243 AD2d 443 [2d Dept 1997]; CPLR 3212[b]).
CPLR 3212(b) also requires that the motion be supported by "available proof." "The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case" (Winegrad v New York Univ. Med. Center, 64 NY2d 851, 853 [1985]; see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 [1957]). "Failure to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers" (Alvarez v Prospect Hosp., supra at 324; see Winegrad v New York Univ. Med. Center, supra at 853).
However, assuming, arguendo, that Claimant had supported his motion by including a copy of all the pleadings, the Court further finds that Claimant failed to make the required prima facie showing of entitlement to judgment as a matter of law. Claimant failed to submit evidence, with his Motion papers, to establish both that he owned and possessed the items he allegedly lost on the dates that they were lost or stolen, and the asserted value of those items on those dates. Thus, he has failed to make a prima facie showing of entitlement to judgment as a matter of law regarding the allegations contained in the Claim.
Therefore, based upon the foregoing, Claimant's Motion for summary judgment is denied.
The Court now turns to Defendant's Cross-Motion to dismiss the Claim. 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 Department of Corrections and Community Supervision (hereinafter, "DOCCS") 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., ¶¶ 28-32).
Here, Claimant asserts that he filed his administrative claims in September and October, 2015 (hereinafter, "Facility Claim # 480-0113-15," and "Facility Claim # 480-0122-15," respectively) and did not receive a decision denying his claims until April 29, 2016, well beyond the three-month period established by DOCCS' regulations (Claimant's Answering Affidavit, ¶ 7). Claimant also asserts that he did appeal the decision denying his administrative claims on May 8, 2016, but the appeal was sent back to him (id., ¶ 8).
7 NYCRR § 700.4 addresses the time frames of the administrative claim process, providing that the "initial review shall be completed within 15 working days of receipt of the claim by the reviewer," and that "[a] claim should be disposed within three months" (§ 1700.4[b], [c]). An appeal must be made within five working days of such opinion, and "should be reviewed within 15 working days of receipt by the reviewer" (§ 1700.4[d]). Depending on the dollar amount of the claim, appeals may be made either to the facility superintendent, or central office (§ 1700.3[b]).
Decisions of this Court have determined that the mere failure of prison authorities to meet regulatory deadlines does not automatically mean that administrative remedies should be deemed exhausted (Paladino v State of New York, UID No. 2005-036-102 [Ct Cl, Schweitzer, J., Sept. 15, 2005]; Tafari v State of New York, supra; see Amaker v State of New York, UID No. 2011-049-019 [Ct Cl, Weinstein, J., Dec. 2, 2011]).
However, decisions of this Court also have found that "there are some circumstances under which an inmate may claim that exhaustion has occurred due to [D]efendant's failure to address his claim in a timely manner" (Amaker v State of New York, supra [claimant wrote to DOCCS to determine status of administrative claim and informed institutional steward at facility that resolution of his institutional claim was untimely], quoting Gagne v State of New York, UID No. 2006-044-005 [Ct Cl, Schaewe, J., Dec. 19, 2006] [claimant deemed to have exhausted his administrative remedies, based on defendant's failure to address claimant's appeal within 4 ½ months, a letter from claimant to defendant that he was going to consider his administrative remedies exhausted, and defendant's failure to respond to the letter]; Paladino v State of New York, [supra] [claimant deemed to have exhausted his remedies when claimant established that defendant did not acknowledge that his property claim had been received until two months after it was made]).
Here, the Court finds and concludes that Claimant has not established that his administrative remedies should be deemed exhausted. Claimant has failed to establish that the delay was unduly long, or that Defendant did not acknowledge his administrative claim (see Ex. D attached to State's Cross-Motion, unnumbered pp. 17-19 [Memoranda dated September, 30, 2015, October 16, 2015, and December 11, 2015, from the Inmate Claims/Business Office to Claimant acknowledging receipt of Facility Claim # 480-0113-15 and then advising him it was under investigation]; and Ex. E attached to State's Cross-Motion, unnumbered pp. 3-5 [Memoranda dated October 16, 2015, November 2, 2015, and December 24, 2015, from the Inmate Claims/Business Office to Claimant acknowledging receipt of Facility Claim # 480-0122-15 and then advising him it was under investigation]), or that he put the State on notice that he was considering his administrative remedies exhausted because of the delay in receiving a decision. In addition, Claimant did not establish that he filed an administrative appeal of the decision denying his administrative claims. He did submit, as an exhibit to Claimant's Answering Affidavit, a Facility Claim Form indicating that the facility steward denied Facility Claim # 480-0113-15 on April 29, 2015 and that he filled out Part 4 of the Form, labeled "Appeal." There is no indication, however, when he sent it or when it was received by DOCCS. In addition, Claimant states that the appeal was sent back to him (Claimant's Answering Affidavit, ¶ 8). However, Claimant does not state if he was told the reason why it was returned or, if a reason was given, what that reason was. Claimant's Answering Affidavit does not include a Facility Claim Form purporting to evidence that he filled out Part 4 of the Form in connection with Facility Claim # 480-0122-15.
On the record before the Court, the only one conclusion that can be reached is that, as of the dates Claimant served and filed this Claim (January 25, 2016 and February 16, 2016, respectively), 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).
For the foregoing reasons, Defendant's Cross-Motion is granted and the Claim is dismissed.
September 19, 2016
Albany, New York
CHRISTOPHER J. McCARTHY
Judge of the Court of Claims The following papers were read and considered by the Court on Claimant's Motion for Summary Judgment and Defendant's Cross-Motion to Dismiss: Papers Numbered Notice of Motion, Affidavit in Support & Exhibit attached 1 Notice of Cross-Motion, Affirmation & Exhibits attached 2 Claimant's Answering Affidavit & Exhibits attached 3 Defendant's Reply 4 Filed Papers: Claim, Answer