Court of Claims, July 29, 2019

Letitia James, Attorney General (Michael T. Krenrich of counsel), for defendant.

Ian Fleming, claimant pro se.

This pro se claim, which was filed in the office of the clerk of the court on December 28, 2018, alleges that, on or about May 8, 2018, claimant was transferred to Franklin Correctional Facility. Claimant asserts that, when he received his property, the bags were damaged and his property was water damaged (claim ¶ 2).

Defendant moves for dismissal of this bailment claim on the basis that claimant has failed to exhaust his administrative remedies pursuant to Court of Claims Act § 10 (9) as of the date the claim was filed. Court of Claims Act § 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 State's papers include the affidavit of Teresa Smith, who is employed as an institution steward at Franklin, and whose duties include answering inquiries from the Attorney General's office relating to inmate records at the facility. Ms. Smith avers that claimant filed an inmate property [*2]claim No. 530-0014-18, on or about May 4, 2018, which was disapproved on February{**65 Misc 3d at 540} 22, 2019,^[FN2] and that the facility has not received either any further correspondence from claimant regarding that property claim number, or an administrative appeal from claimant regarding that property claim (Smith aff ¶¶ 2-6, attached to mot). In opposition to defendant's motion to dismiss, claimant asserts that defendant did not decide his institutional claim within three months pursuant to Department of Corrections and Community Supervision (hereinafter DOCCS) Directive No. 2733 (III) (A) (4) and, thus, the court should consider that he exhausted his administrative remedies (claimant's response ¶¶ 4-6).

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, Ct Cl, Dec. 9, 2002, Lebous, J., claim No. 106576, UID No. 2002-019-591; McLean v State of New York, Ct Cl, Sept. 19, 2016, McCarthy, J., claim No. 127523, UID No. 2016-040-064; see Griffin v State of New York, Ct Cl, Aug. 23, 2007, Collins, J., claim No. 113558, UID No. 2007-015-232). The State argues that claimant filed and served this claim before he exhausted those administrative remedies (affirmation of Michael T. Krenrich, Esq., ¶¶ 2, 8-10).

Here, claimant asserts that he filed his administrative claim on May 4, 2018 (exhibit A, attached to claimant's response to mot), and that Franklin failed to decide the matter within three months as required by DOCCS regulations and directives (claimant's response to mot ¶¶ 3, 4).

7 NYCRR 1700.4 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" (7 NYCRR 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" (7 NYCRR 1700.4 [d]). Depending on the dollar amount of the claim, appeals may be made either to the facility superintendent, or central office (7 NYCRR 1700.3 [b]).{**65 Misc 3d at 541}

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, Ct Cl, Sept. 15, 2005, Schweitzer, J., claim No. 110824, UID No. 2005-036-102; Tafari v State of New York; see Amaker v State of New York, Ct Cl, Dec. 2, 2011, Weinstein, J., claim No. 119691, UID No. 2011-049-019).

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 defendant's failure to address his claim in a timely manner" (Amaker v State of New York [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, Ct Cl, Dec. 19, 2006, Schaewe, J., claim No. 109626, UID No. 2006-044-005 [claimant deemed to have exhausted his administrative remedies, based on defendant's failure to address claimant's appeal within 41/2 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 [claimant deemed to have [*3]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]). In addition, in Shell v State of New York (Ct Cl, Mar. 3, 2003, Waldon, J., claim No. 103998, mot No. M-65424), the court held that a nine-month delay in processing the administrative claim (from June 26, 2000, to Mar. 21, 2001, when his claim was filed) constituted exhaustion.

Here, claimant filed an administrative claim with Franklin on May 4, 2018; then, after not receiving an administrative determination for over 31/2 months, he filed a grievance on August 23, 2018, with the Inmate Grievance Program at Clinton Correctional Facility Annex. By correspondence dated September 24, 2018, claimant was advised that his institutional claim was "under investigation" and he was advised that he "may contact Franklin . . . to obtain the status of his Claim" (exhibit B, attached to claimant's response). Claimant, in his response, did not advise the court if he contacted Franklin to ascertain the status of his administrative claim. However, approximately two months later, on December 28, 2018, he filed his claim in the office of the clerk of the court, more than seven months after{**65 Misc 3d at 542} he submitted his administrative claim. Subsequently, approximately two months later, on February 22, 2019, claimant's administrative claim was disapproved, more than nine months after claimant filed it. The court finds and concludes that claimant has established that his administrative remedies should be deemed exhausted. Here, the delay in determining the administrative claim was over seven months, a similar amount of time as in Shell. In addition, claimant filed a grievance regarding the fact that the administrative claim was not decided within the three-month time frame set forth in DOCCS regulations, putting defendant on notice of the delay similar to the claimant in Amaker.

Therefore, based upon the foregoing, defendant has failed to establish that dismissal of this claim for failure to exhaust administrative remedies is appropriate. For the foregoing reasons, defendant's motion to dismiss is denied.