CATHERINE C. SCHAEWE
Synopsis
Inmate claim for loss of personal property dismissed after trial as untimely.
Case information
| UID: |
2019-044-012 |
| Claimant(s): |
CHARLES SIMMS |
| Claimant short name: |
SIMMS |
| Footnote (claimant name) : |
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| Defendant(s): |
THE STATE OF NEW YORK |
| Footnote (defendant name) : |
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| Third-party claimant(s): |
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| Third-party defendant(s): |
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| Claim number(s): |
127677 |
| Motion number(s): |
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| Cross-motion number(s): |
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| Judge: |
CATHERINE C. SCHAEWE |
| Claimant's attorney: |
CHARLES SIMMS, pro se |
| Defendant's attorney: |
HON. LETITIA JAMES, ATTORNEY GENERAL BY: Douglas H. Squire, Assistant Attorney General |
| Third-party defendant's attorney: |
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| Signature date: |
September 3, 2019 |
| City: |
Binghamton |
| Comments: |
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| Official citation: |
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| Appellate results: |
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| See also (multicaptioned case) |
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Decision
Claimant, an inmate proceeding pro se, filed this claim to recover for the loss of personal property which allegedly occurred when he was transferred from G-Block to the Special Housing Unit (SHU) while in the custody of the Department of Corrections and Community Supervision at Elmira Correctional Facility (Elmira). Defendant State of New York (defendant) answered and asserted two affirmative defenses, including the defense that the claim was not timely filed. A trial in this matter was conducted by video conference on August 29, 2019, with the parties appearing at Elmira, and the Court sitting in Binghamton, New York.
Prior to trial, counsel for defendant gave claimant a copy of the trial transcript that claimant alleged was among the missing items. Claimant acknowledged this, and the Court appreciates counsel's action.
At trial, claimant testified that on August 24, 2015 he was moved to SHU. He said that on August 31, 2015, he was given his personal property and he discovered 25 different types of items were missing. He stated that he refused to sign the I-64 transfer form (Claimant's Exhibit 2 at 1) because some of the items listed on it were missing. Claimant filed an institutional claim, which was denied. He appealed, and the appeal was also denied (Claimant's Exhibit 1). Claimant testified that he received notice of the denial of his appeal on November 10, 2015. Claimant submitted receipts and/or package room receipts for some of the items (Claimant's Exhibits 3 and 4).
Defendant did not present any witnesses. At the close of claimant's case, defendant moved to dismiss the claim on the basis that it was untimely, as the claim accrued on November 10, 2015, defendant was served with the claim on March 21, 2016, and the claim was filed on March 18, 2016. Claimant became irate and argumentative in response because he signed the claim on February 27, 2016, and it was notarized on February 29, 2016. Claimant argued that it was accordingly timely and should not be subject to dismissal.
Court of Claims Act § 10 (9) requires 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." The administrative remedy in 7 NYCRR part 1700 provides a two-tier system of administrative review (see 7 NYCRR 1700.3). An inmate should file a claim form (Form 1421) within 5 days following discovery of the loss (7 NYCRR 1700.4 [a]). The initial review is to be completed within 15 working days of receipt of the claim (7 NYCRR 1700.4 [b]), and a decision is required to be made within three months (7 NYCRR 1700.4 [c]). The inmate may seek further review by filing an appeal within five working days after the initial disapproval of the claim (see 7 NYCRR 1700.4 [d]). The inmate then has 120 days from the date that the inmate received notice of the adverse determination in which to file a claim with the Court of Claims (Court of Claims Act § 10 [9]; see Scott v State of New York, 137 AD3d 1434 [3d Dept 2016], lv denied 27 NY3d 911 [2016]; Blanche v State of New York, 17 AD3d 1069, 1071 [4th Dept 2005]).
Claimant acknowledged his receipt of the denial of his appeal on November 10, 2015. The claim is file stamped March 18, 2016. To be timely, the claim would have had to have been filed and served on or before March 9, 2016. The Court is accordingly constrained by the strict jurisdictional requirements set forth in Court of Claims § 10 (9) to find that the claim is untimely. Claim No. 127677 is hereby dismissed in its entirety.
Let judgment be entered accordingly.
September 3, 2019
Binghamton, New York
CATHERINE C. SCHAEWE
Judge of the Court of Claims