Opinion
# 2013-049-007 Claim No. 121627 Motion No. M-82251
01-30-2013
HERACLIDES ROSARIO v. THE STATE OF NEW YORK
Synopsis
Defendant's motion to dismiss pro se inmate's property claim as untimely, for failure to comply with the 120 day time limitation period of Court of Claims Act § 10 (9), denied. Defendant did not establish that the claim was served beyond 120 days from date claimant received notice of the denial of his appeal.
Case information
UID: 2013-049-007 Claimant(s): HERACLIDES ROSARIO Claimant short name: ROSARIO Footnote (claimant name) : Defendant(s): THE STATE OF NEW YORK Footnote (defendant name) : Third-party claimant(s): Third-party defendant(s): Claim number(s): 121627 Motion number(s): M-82251 Cross-motion number(s): Judge: David A. Weinstein Claimant's attorney: Heraclides Rosario, Pro Se Eric T. Schneiderman, NYS Attorney General Defendant's attorney: By: Roberto Barbosa, Assistant Attorney General Third-party defendant's attorney: Signature date: January 30, 2013 City: Albany Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
Claimant Heraclides Rosario, an inmate appearing pro se, seeks damages for the loss of certain items of his personal property that allegedly went missing as a result of a cell move at Southport Correctional Facility on March 10, 2012. On May 6, 2012, Rosario filed an administrative property claim (Barbosa Aff. Ex. A). The claim was disapproved on May 15, 2012, and on the same day claimant appealed (id.). On May 16, 2012, claimant's appeal was disapproved (id.).
On August 8, 2012, defendant was served with a copy of the claim (Barbosa Aff. Ex. B), and on the same day rejected and returned the claim pursuant to CPLR 3022 because it was unverified (Barbosa Aff. Ex. C). On September 10, 2012, defendant served and filed an answer, in which it raised as its first affirmative defense that "the claim is defective as it was unverified as required by Court of Claims Act § 11" (Barbosa Aff. Ex. D). On September 17, 2012, claimant re-served a properly verified claim (Barbosa Aff. Ex. E.).
The re-served claim appears to be identical to the claim previously served, except that it contains a verification.
Defendant State of New York now moves to dismiss on the ground that Rosario failed to serve his claim within 120 days of the date he exhausted his administrative remedies as required by Court of Claims Act § 10 (9). Section 10 (9) provides that an inmate's claim "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 of Corrections and Community Supervision]," and that "[s]uch claim must be filed and served within one hundred twenty days after the date on which the inmate has exhausted such remedy." Defendant contends that claimant exhausted his administrative remedies on May 16th, and therefore September 14th was the outside date to serve and file the claim.
Defendant appears to proceed on the mistaken premise that an inmate's property claim accrues when the administrative appeal is denied - in this case on May 16th - rendering the claim re-served on September 17th untimely. The case law is clear, however, that such a claim accrues on the date claimant received notice of the denial of his appeal (see Blanche v State of New York, 17 AD3d 1069 [4th Dept 2005]). In Blanche, the Appellate Division held that a claimant is "not aggrieved by the mere issuance of an adverse determination but by the receipt of notice of that determination" (id. at 1071). Defendant's papers fail to specify the relevant date, and the record is otherwise devoid of evidence as to when Rosario received notice of the denial of the appeal. Therefore, I cannot conclude, one way or the other, whether claimant complied with the time limitation provision of section 10 (9).As a result, defendant has not met its burden to show that the case should be dismissed at this stage of the proceeding (see McQuilkin v State of New York, UID No. 2009-018-016 [Ct Cl, Fitzpatrick, J., Mar. 18, 2009] [motion to dismiss claim for lost property as untimely denied; it is "defendant's burden" to prove untimeliness, and defendant failed to present evidence as to when administrative determination was mailed, or that claimant received it]; Zarvela v State of New York, UID No. 2007-030-045 [Ct Cl, Scuccimarra, J., Nov. 29, 2007] ["defendant has not met its burden of proof of establishing [untimeliness], because the defendant has not shown when the decision was received in order to demonstrate that it was untimely"]; Imbert v State of New York, UID No. 2007-040-010 [Ct Cl, McCarthy, J., Mar. 1, 2007] [dismissal of personal property claim as late would be unwarranted, where record "contains no evidence . . . to indicate the date upon which Claimant actually received notification" of administrative determination]).
Courts have found that the State may establish the timing of receipt via evidence of the date that an administrative decision was mailed, provided it was not returned undeliverable (see McQuilkin, infra); the existence of a gap in time between the date of decision and the filing and service of the claim sufficiently beyond the 120-day period so as to create an inference of untimeliness, which claimant fails to rebut (see White v State of New York, UID No. 2010-038-528, at n 2] [Ct Cl, DeBow, J., May 3, 2010] [motion to dismiss granted where no evidence that notice of administrative decision received "substantially after" date on which it was made, as would have been necessary for action to be timely]; or an admission by claimant (see Goldstein v State of New York, UID No. 2010-009-042 [Ct Cl, Midey, J., Dec. 16, 2010]). Here, defendant has adduced no such proof, nor has it demonstrated the time of receipt through other means, such as by establishing the general practice for delivering administrative decisions or showing that the decision at issue was actually given claimant on a particular date. Rather, defendant only states without elaboration that claimant "exhausted his administrative remedies" on May 16, 2012 (Barbosa Aff. ¶ 6). That is not sufficient to meet its burden.
In view of the foregoing, it is
ORDERED, that defendant's motion no. M-82251 be denied.
January 30, 2013
Albany, New York
David A. Weinstein
Judge of the Court of Claims
Papers considered
1. Defendant's Notice of Motion, Affirmation and annexed Exhibits.
2. Claimant's "Verified Responded Answer" and annexed Exhibits; "Reply-Affirmation."