Opinion
# 2015-018-650 Claim No. 126170 Motion No. M-87062
10-13-2015
RAYMOND G. YOUNIS, JR. v. STATE OF NEW YORK
RAYMOND G. YOUNIS, JR. Pro Se ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Ray A. Kyles, Esquire Assistant Attorney General
Synopsis
Claimant did not timely file and serve his lost property claim and as a result, the claim must be DISMISSED.
Case information
| UID: | 2015-018-650 |
| Claimant(s): | RAYMOND G. YOUNIS, JR. |
| Claimant short name: | YOUNIS |
| Footnote (claimant name) : | |
| Defendant(s): | STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 126170 |
| Motion number(s): | M-87062 |
| Cross-motion number(s): | |
| Judge: | DIANE L. FITZPATRICK |
| Claimant's attorney: | RAYMOND G. YOUNIS, JR. Pro Se |
| Defendant's attorney: | ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Ray A. Kyles, Esquire Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | October 13, 2015 |
| City: | Syracuse |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Defendant brings a pre-answer motion to dismiss the claim for failure to timely file and serve a claim seeking damages for loss of property at a correctional facility. Claimant opposes the motion.
Claimant served and filed a claim for lost property which he asserts he had secured in a locked locker in the custody of the State of New York Department of Corrections and Community Supervision (DOCCS) at Cayuga Correctional Facility. Claimant indicates that he was taken from the B-1 Dorm to the Special Housing Unit (SHU) on June 11, 2014. On June 14, 2014, Claimant was taken from the SHU to the property room to view his property. He informed an officer at that time that he was missing property, and he was given a loss property claim form. On June 19, 2014, he filed his loss property claim form with the facility seeking $204.19. His administrative claim was denied. He appealed to the Superintendent and on September 9, 2014, and his appeal was denied.
Claimant served the Attorney General with two notices of intention. One notice of intention was served by certified mail, return receipt requested on August 14, 2014, and the second was served by certified mail, return receipt requested on September 22, 2014. The claim was filed on May 18, 2015, and served by certified mail, return receipt requested upon the Attorney General on April 13, 2015.
Defendant now argues that the claim was not served and filed within 120 days of the date Claimant exhausted the inmate administrative loss property claim process in accordance with Court of Claims Act section 10 (9) and the claim must be dismissed. Claimant, in response, argues that since he is currently in the custody of the Office of Mental Health, he cannot access legal materials or advice and relied upon a pamphlet prepared by "Prisoners' Legal Services of New York," dated February 2008, which indicates that a claim for lost property must be filed and served within 120 days of the date a prisoner has exhausted the personal property administrative remedy, but "[It] is possible, however, to significantly extend the above deadlines for serving and filing a Claim by instead serving a Notice of Intention within those time frames. By timely serving a proper Notice of Intention within the above 90 or 120 day periods as required, the deadline for filing and serving an actual claim is extended . . ." Relying on that provision, he served the two notices of intention which he thought extended the time frame for filing a claim for loss of property. Claimant also alleges that in July 2014, he was transferred from the custody of DOCCS to the Department of Mental Health and moved two times, resulting in difficulty getting his legal paperwork until he was placed at the second facility.
See Claimant's Exhibit A.
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. Such claim must be filed and served within one hundred and twenty days after the date on which the inmate has exhausted such remedy."
The New York State Code of Rules and Regulations indicates that DOCCS has established a two-tier system of administrative review for the loss of inmates' personal property which consists of an initial review and an appeal (7 NYCRR § 1700.3).
The appeal of Claimant's administrative property claim was denied on September 9, 2014. Claimant did not file and serve his claim with the Court of Claims until eight months after he exhausted his administrative remedy. The service of a notice of intention did not extend Claimant's time to file because Court of Claims Act section 10 (9) does not authorize service of a notice of intention (see Bush v State of New York, 60 AD3d 1244, 1245 [3d Dept 2009]; Pristell v State of New York, 40 AD3d 1198 [3d Dept 2007]). Unfortunately for Claimant, ignorance of the law is never an excuse for untimely filing and service of a claim (Modern Transfer Co. v State of New York, 37 AD2d 756 [4th Dept 1971]). The statutory requirements for filing and service of a claim in the Court of Claims "must be strictly construed because the question of timeliness of filing is jurisdictional." (Roberts v State of New York, 11 AD3d 1000 [4th Dept 2004] quoting Matter of Welch v State of New York, 71 AD2d 494 [4th Dept 1979] lv denied 50 NY2d 802 [1980]). Here, Claimant did not timely file and serve his lost property claim and as a result, the claim must be DISMISSED.
October 13, 2015
Syracuse, New York
DIANE L. FITZPATRICK
Judge of the Court of Claims The Court has considered the following in deciding this motion: 1) Notice of Motion. 2) Affirmation of Ray A. Kyles, Esquire, Assistant Attorney General, in support, with exhibits attached thereto. 3) Undated and unsworn "Affidavit in support of Opposition to Motion" of Raymond G. Younis, Jr., filed with the Clerk of the Court of Claims on June 5, 2015.