Opinion
# 2015-029-043 Claim No. 125632 Motion No. M-86379
06-01-2015
TAYLOR v. THE STATE OF NEW YORK
TALIYAH TAYLOR, pro se ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL By: Terrance K. DeRosa, Assistant Attorney General
Synopsis
Defendant moves to dismiss the Claim for lack of jurisdiction due to Claimant's failure to file and serve her claim within 120 days from the exhaustion of administrative remedies, as required by Court of Claims Act §10(9). Claimant, appearing pro se, opposes the motion, arguing that the Claim is timely, or alternatively that the court should exercise its discretion and accept the Claim under §10(6). The motion was denied because defendant did not meet its burden to show when when the 120-day period under Court of Claims Act §10(9) began to run. Court found it unnecessary to reach remaining arguments.
Case information
| UID: | 2015-029-043 |
| Claimant(s): | TALIYAH TAYLOR |
| Claimant short name: | TAYLOR |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 125632 |
| Motion number(s): | M-86379 |
| Cross-motion number(s): | |
| Judge: | STEPHEN J. MIGNANO |
| Claimant's attorney: | TALIYAH TAYLOR, pro se |
| Defendant's attorney: | ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL By: Terrance K. DeRosa, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | June 1, 2015 |
| City: | White Plains |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Taliyah Taylor, an inmate at the Bedford Hills Correctional Facility, alleges in her claim that agents of the facility negligently failed to secure her property, a pair of khaki shorts, sent to her at that location. Claimant is seeking damages in the total amount of $103.61, including $37.46 for the shorts, $50 for the reduced filing fee, and $16.15 for other expenses. The claim was served on February 9, 2015, and filed on February 10, 2015. Defendant's motion is based solely on an Attorney's Affirmation, the claim and its attached exhibits.
By Order filed February 23, 2015, claimant was granted a fee reduction to $35.
On or about July 8, 2014, the facility confiscated claimant's khaki shorts, claiming they were in a cargo style and therefore not allowed. After the khaki shorts were confiscated, claimant signed paperwork to have them set aside for "Sgt. Review." She spoke with Sergeant Skinner on several occasions about reviewing the confiscation, but she was unable to locate the shorts. Claimant filed an inmate property claim on September 11, 2014, seeking reimbursement of $37.46 for the shorts. That claim was rejected as untimely by L. Zwillinger on September 15, 2014, and Claimant's appeal was disapproved by the Superintendent.
Presumably, by "cargo" style, claimant is referring to pants and shorts with big, deep pockets.
A packing slip shows that the shorts' price was $29.99, with $2.47 in tax and $5.00 for shipping.
Court of Claims Act §11(a)(1) requires, among other things, that a copy of the claim "shall be served personally or by certified mail, return receipt requested, upon the attorney general" and that such service be effected "within the times hereinbefore provided for filing with the clerk of the court." Court of Claims Act §10(9) requires that a bailment claim such as this be filed and served within 120 days of the exhaustion of claimant's administrative remedies. It is well established that failure to serve the claim in accordance with the requirements of Court of Claims Act §11 is a jurisdictional defect that requires dismissal of the claim (see Rodriguez v State of New York, 307 AD2d 657 [3d Dept 2003]). '[B]ecause suits against the State are allowed only by the State's waiver of sovereign immunity and in derogation of the common law, statutory requirements conditioning suit must be strictly construed' " (Kolnacki v State of New York, 8 NY3d 277, 280 [2007], quoting Dreger v New York State Thruway Auth., 81 NY2d 721, 724 [1992]).
Defendant has established that it received service of the claim by certified mail on February 9, 2015 (see Exhibit B, Affidavit of Service). To establish that the claim was untimely, defendant asserts that the disapproval took place on September 17, 2014, which was 145 days before the claim was served. Disapproval of the appeal exhausts an inmate's administrative remedies for a personal property claim, but the 120-day period under Court of Claims Act §10(9) begins to run on the date the inmate receives notice of the disapproval (see Blanche v State of New York, 17 AD3d 1069, 1071 [4th Dept 2005]).
Defendant has made no effort to show when, if at all, claimant received notice of the Superintendent's decision. Defendant points to claimant's statement in Paragraph 21 of the claim that, "[o]n September 17, 2014, Supt. Kaplan disapproved claimant's claim." Not only is this statement insufficient to show when claimant received notice, claimant's reference to September 17th cites to Exhibit 8, which is the inmate property claim being appealed, and not the Superintendent's disapproval of the appeal or any other document showing the date of that disapproval. Without more, defendant fails to meet its burden.
Although defendant does not cite to additional exhibits, Exhibit 14 is relevant to the issue of timeliness. The Superintendent's disapproval appears in the second page of Exhibit 14, which is the form containing the rejections of both the "facility initial review" and of the claimant's appeal. However, the relevant dates are missing. The bottom portion of the form, where the date would normally appear, has been cut off. Claimant does state in Paragraph 6 of her Reply to the motion that the Superintendent's disapproval was "based on a report by BHCF Sergeant ("Sgt.") Skinner" (Ex. 9). Sgt. Skinner's report does help in determining when the Superintendent disapproved the appeal, but only to the extent of ruling out September 17th. The report is dated September 18, 2014, one day later.
Although a stamp on the form contains the date of September 18, 2014, neither party has explained what the stamped date represents.
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However, the court construes the first page of Exhibit 14 to show that the disapproval of the appeal, and notice to claimant, likely took place some time in October, 2014. The first page of Exhibit 14 is a note by the Superintendent dated December 15, 2014, referring to his review of the documentation, and his response (disapproving of the appeal) "to you [Claimant] in 10/14," and noting his attachment of a copy of that response (Ex. 14, p 2). Nevertheless, without knowing what day in October, 2014 notice was provided to claimant, the court cannot determine if the claim is late. If notice occurred after the second week of October, 2014, then service on February 9th and filing on February 10th would have been timely.
In light of the court's denial of the motion on its merits, the court need not discuss in depth claimant's remaining arguments, which in any event are without merit. In the context of inmate personal property claims, the appeal is the final administrative remedy [7 NYCRR 1700.3(b)(4)], and the court does not have discretionary authority to grant late claim relief pursuant to Court of Claims Act §10(6) (see Blanche v State v State of New York, 17 AD3d 1069, 1071 [2005]).
For the foregoing reasons, the motion is denied. Defendant shall file and serve an answer to the claim within 40 days of the filing date of this decision and order.
June 1, 2015
White Plains, New York
STEPHEN J. MIGNANO
Judge of the Court of Claims
Papers Considered:
Notice of Motion and Exhibits
Affirmation in Reply
Reply