BARRETT v. THE STATE OF NEW YORK, #2000-001-036, Claim No. NONE, Motion No.
Claimant's motion for permission to file a late claim is denied.
Footnote (claimant name)
THE STATE OF NEW YORK
Footnote (defendant name)
SUSAN PHILLIPS READ
Eddie Barrett, Pro Se
Hon. Eliot Spitzer, NYS Attorney GeneralBy: Carol C. Poles, Assistant Attorney General
June 30, 2000
See also (multicaptioned
The following papers were read and considered on claimant's motion for
permission to file a late claim pursuant to Court of Claims Act § 10 (6):
Notice of Motion, dated December 20 and filed December 27, 1999; Affidavit in
Support of Eddie Barrett, dated December 20 and filed December 27, 1999, with
annexed Proposed Claim dated December 20, 1999; Affirmation in Opposition of
Carol C. Poles, Esq., AAG, dated February 2 and filed February 4, 2000, with
numerous unnumbered exhibits annexed; and Reply to Affirmation in Opposition of
Eddie Barrett, dated February 15 and filed February 18,
Claimant Eddie Barrett ("claimant") seeks the Court's permission to file a late
claim pursuant to section 10 (6) of the Court of Claims Act. His proposed
claim dated December 20, 1999 (annexed to Affidavit in Support of Eddie Barrett,
dated December 20 and filed December 27, 1999 ["Barrett Aff."]) alleges that on
June 22, 1999 at Green Haven Correctional Facility he was wrongfully deprived of
his personal property in the following manner:
Sgt. ordered Search Officer to throw out all excess books, mags., etc. Ordered
claimant to bag same; then, ordered claimant to sign shipping form (for a
one-time shipment). Claimant protested. Sgt. violently threatened immediate
destruction. Claimant signed under duress. Pkg room off. later stated lack
of funds. Then she coerced claimant to donate to "nice little church"--under
same threat . . ."
(Proposed Claim, ¶ 3). This motion was brought six months after the
asserted cause of action arose, and a like action against a citizen would not be
barred by any applicable statute of limitations (CPLR 214 [injury to property]
and/or CPLR 215 [intentional tort]).
In determining a motion for permission to file a late claim against the State
of New York ("defendant" or "the State"), the Court must consider, among other
relevant factors, the six factors set forth in subdivision 6 of section 10 of
the Court of Claims Act: 1) whether the delay in filing the claim was
excusable; 2) whether the State had notice of the essential facts constituting
the claim; 3) whether the State had an opportunity to investigate the
circumstances underlying the claim; 4) whether the claim appears to be
meritorious; 5) whether the failure to file or serve a timely claim or serve a
timely notice of intention resulted in substantial prejudice to the State; and
6) whether the claimant has another available remedy. The Court in the exercise
of its discretion balances these factors; the presence or absence of any one
factor is not dispositive (Bay Terrace Coop. Section IV v New York State
Employees' Retirement Sys. Policemen's and Firemen's Retirement Sys., 55
Claimant states that he failed to initiate timely action in this court because
he is a layman, had no access to professional legal counsel, had only limited
access to the facility law library and was transferred during the statutory
period for filing (Barrett Aff., ¶ 3). The filing requirements of the
Court of Claims are not so burdensome that a layperson cannot prepare adequate
pleadings, and ignorance of the law, including ignorance of applicable time
limits, is not an acceptable excuse for delay (see, e.g., Matter of
Galvin v State of New York, 176 AD2d 1185, app denied 79 NY2d 753;
Erca v State of New York, 51 AD2d 611, affd 42 NY2d 854). In
addition, neither the fact of incarceration nor the normal conditions of
incarceration justify failure to comply with the time requirements of the Court
of Claims Act (Bommarito v State of New York, 35 AD2d 458; Plate v
State of New York , 92 Misc 2d 1033, 1037-1038). This factor, therefore,
weighs against claimant's motion.
Claimant further asserts (albeit in the proposed claim rather than in his
affidavit) that the State had notice of the essential facts constituting the
claim because a timely grievance was filed regarding the loss of personal
property (Proposed Claim, ¶ 2). It cannot be assumed, however, that the
State had actual knowledge of an event giving rise to a claim merely because it
owned and maintained the facility in which it occurred (Turner v State of New
York, 40 AD2d 923).
While sufficient notice may be inferred from certain occurrences--such as an
inmate assault inflicting serious injuries--that would, in the normal course, be
investigated for other reasons (Espinal v State of New York, 159 Misc 2d
1051), the existence of a report filed with the State does not automatically
establish sufficient notice to satisfy the statute (Wolf v State of New
York, 140 AD2d 692). The statute refers to notice of "the facts
constituting the claim," which has been held to mean that the State must be
aware that there will be--or is likely to be--litigation in the future (Block
v New York State Thruway Auth., 69 AD2d 930). A routine grievance asserting
a property loss in a State correctional facility does not forecast
Because proof of the allegations will depend to a large extent on personal
recollection and credibility, the State's opportunity to conduct a full and
thorough investigation may have been hampered by the passage of time, and to the
extent this has occurred, defendant has been prejudiced. The second, third and
fifth factors thus weigh against claimant's motion.
Next, claimant does not appear to have an alternative remedy. Thus, the sixth
factor weighs in favor of claimant's motion.
With respect to the fifth factor--the underlying merit of a proposed claim--a
movant need only establish that the proposed claim is not patently groundless,
frivolous, or legally defective and that there is reasonable cause to believe
that a valid cause of action exists (Matter of Santana v New York State
Thruway Auth., 92 Misc 2d 1). On the other hand, for the Court to permit a
defective claim to be filed, even if the other factors in Court of Claims Act
§ 10 (6) supported the granting of claimant's motion, would be meaningless
and futile and could be considered an abuse of discretion (Savino v State of
New York, 199 AD2d 254; Prusack v State of New York, 117 AD2d 729).
Claimant's affidavit submitted with the motion contains no statement in support
of the merit of his claim. Defendant's counsel, on the other hand, addresses
the merits of the claim in great detail, contending that it lacks any basis in
law or fact because claimant was not authorized to have possession of the excess
books and magazines in the first place and therefore was required to dispose of
them in some fashion (Affirmation in Opposition of Carol C. Poles, Esq., AAG,
dated February 2 and filed February 4, 2000 ["Poles Aff."], ¶ 3). Because
claimant did not have enough money in his inmate account to pay for them to be
shipped to family or friends, he was required by Department of Correctional
Services ("DOCS") directives either to donate them to a charitable organization
or to have them destroyed (id.). He chose the former option
Defense counsel has included in her submission to the Court a number of
documents relevant to claimant's allegations, and appropriate to consider in
determining a motion for permission to file a late claim (Matter of Santana v
New York State Thruway Auth., 92 Misc 2d 1, 11, supra). These
documents (annexed to the Poles Aff., with no number or other identification)
include the following:
An Inmate Account statement showing that on June 22, 1999, claimant had a total
of $90.53 in his account.
A Contraband Receipt, dated June 22, 1999, listing extra books and magazines
that were "more than allotted per directive" and indicating that they were to be
sent out "via inmate expense."
Two forms, a Disbursement or Refund Request and an Authorization for Disposal of
Personal Property, both dated June 22, 1999 and both signed by claimant,
requesting that nine bags of books and magazines be sent to an address in
Oklahoma City, OK.
The Authorization for Disposal of Personal Property form provides the following
four options: "A) Ship at my expense to _________, B) Send out via visitor, C)
Donate to charitable org., D) Destroy at facility."
The affidavit of Deborah R. Fitzpatrick (sworn to January 25, 2000), Package
Room Correction Officer at Green Haven C.F., who states the following: On June
22, 1999, she was approached by claimant with approximately 720 pounds of excess
books and magazines. He requested that the books be shipped to an address in
Oklahoma, and she estimated the cost to ship them by ground to be $391.68. At
the time claimant had only $90.53 in his account. She discussed other options
available to him, and claimant chose to execute an Authorization for Disposal of
Personal Property Form directing that the books and magazines be donated to a
nearby Baptist Church.
A second Authorization for Disposal of Personal Property, also dated June 22,
1999 and signed by claimant, indicating that the nine bags of books were to be
donated to a specific charitable organization, a church in Stormville.
Claimant's Inmate Grievance Complaint, dated July 2, 1999, in which he protests
the "taking of personal property w/o fair notice."
An inter-departmental communication from the Inmate Grievance Supervisor to
claimant, dated July 9, 1999, stating that during a frisk, all inmates found to
be in possession of contraband items were given the following choices: dispose
of the property, ship it home at personal expense, or be issued a misbehavior
report and thus allowed to argue for retaining the items at a hearing.
8. Another inter-departmental communication, also dated July 9, 1999, from the
Inmate Grievance Supervisor to the IGRC (Inmate Grievance Review Committee),
stating that claimant was not denied a chance to be heard: "He could have
accepted a misbehavior report and argued/presented his position at his hearing.
He chose the alternative option."
DOCS Directive No. 4910, which provides, in section V (A) "Control of &
Search for Contraband," that routine block and cell searches may be made.
Section VI(A)(4) defines contraband as items "possessed by an inmate without
authorization." Section VI(D)(5)(b) provides that confiscated items that are
potential evidence in disciplinary proceedings are to be held until the
conclusion of the proceeding.
DOCS Directive No. 4913, which provides, in section II (A) (1) "Departmental
Limit on Personal Property in Living Quarters," that inmates can accumulate no
more than 24 magazines or 25 books (35 if the inmate is enrolled in a college
course) in their living quarters. Section II (A) (7) provides that all surplus
or disallowed property is to be disposed of as indicated on the Authorization
for Disposal of Personal Property form (see, #3 above).
Based on this documentary evidence, none of which is challenged by claimant,
the Court can only conclude that the State's actions were proper and that the
proposed claim does not, and cannot, state a viable cause of action. Once it
was determined that claimant possessed an excess number of books and magazines,
he had two choices: to challenge the designation of his property as contraband
and thus have it held as potential evidence in a disciplinary hearing (Directive
No. 4910) or to dispose of it in one of the four ways permitted by Directive No.
4913. He elected to dispose of it and his choice of the manner of disposal was
forced, not by the actions of correction officers, but by his financial
Claimant's second affidavit in support of his motion (Reply to Affirmation in
Opposition of Eddie Barrett, dated February 15 and filed February 18, 2000
addresses some allegations
that are clearly not part of the proposed claim, including allegations that the
property was carelessly damaged and that claimant was humiliated in front of
others (Reply Aff., ¶ 3), and the Court will not consider these
allegations. With respect to the legality of the State's actions in taking
possession of the property, claimant's only new allegation is that he was not
afforded a period of forty-eight hours in which to select the method for
disposing of his property (id
, ¶ 3 ).
Section II (6) (c) of DOCS Directive No. 4913 provides the following with
respect to corrective action to be taken if an inmate is found to possess excess
The Sergeant or the appropriate security supervisor will meet with the inmate to
discuss corrective action to be taken. The inmate will be allowed 48 hours in
which to select from the options referenced in Section II-A-7 and outlined on
Form 2068 [Authorization for Disposal of Personal Property]. Failure to select
an option or refusal to sign Form 2068 will result in the facility destroying or
disposing that amount of property found to be in excess of Department
To determine whether claimant sought to take advantage of the full forty-eight
hours in which to make his decision and, if so, whether he was in fact prevented
from doing so, would, of course, require testimony by the participants and, in
all likelihood, an assessment of the witnesses' credibility. In order to
evaluate the apparent merit of this cause of action, however, the Court will
assume both a violation of the directive and amendment of the proposed
claim to set forth this specific allegation. With these assumptions made, the
critical question becomes whether claimant suffered any compensable injury as a
result of the violation.
Unless an inmate chooses to challenge the determination that his property is
"excess, and therefore contraband," DOCS Directive No. 4913 provides only four
ways in which an inmate may dispose of excess personal property: mailing it
away from the facility at the inmate's expense, having it carried away by a
visitor, donating it to a charity or having it destroyed. In this case,
considering the facts to be as they are alleged by claimant, nothing suggests
that claimant could have, within forty-eight hours, arranged for a visitor to
carry away approximately 720 pounds of books and magazines or increased the
amount in his inmate account by approximately $300. In short, even if credible
testimony were to prove that claimant had sought and been denied the forty-eight
hour delay provided for in the directive, the final result would have been the
same: disposal of the books and magazines either by donation or destruction.
In other words, claimant suffered no tangible or measurable loss as a result of
any rule violation, and proof of injury or damages is an essential element of
his tort cause of action (IGEN, Inc. v White, 250 AD2d 463, 465, citing
to Prosser and Keeton, Torts § 30, at 165 [5th ed 1984]; Wolfe v
Samaritan Hosp., 104 AD2d 143, 146).
The frequently quoted maxim that "[p]roof of negligence in the air * * * will
not do" (Pollock, Torts, at 472 [10th ed]) has been explained by the Court of
Appeals to mean that "the concept of a duty of care, which is essential to the
law of negligence, has meaning only when it is considered in relation to both
the harm that the duty exists to prevent and the class of individuals to
whom it is owed" (Waters v New York City Hous. Auth., 69 NY2d 225,
228-229 [emphasis added]). In Kronos, Inc. v AVX Corp. (81 NY2d 90,
95), the Court again emphasized that, as a general rule, in tort "actual loss
must be demonstrated (citations omitted)."
This requirement has been recognized before in the context of inmate claims
alleging that prison officials have violated their own rules and regulations
(see, e.g., Matos v Goord, __ AD2d __, 699 NYS2d 780 [article 78
proceeding: the outcome of a disciplinary hearing on remaining charge would have
been no different in absence of alleged errors concerning witnesses, documentary
evidence and confidential information with respect to dismissed charge];
Matter of Moore v Goord, 255 AD2d 640 [article 78 proceeding: failure to
provide relevant medical records at a disciplinary hearing was harmless error
not affecting the outcome in light of the overwhelming evidence of guilt];
Henderson v Coughlin, 163 Misc 2d 20 [Court of Claims action: confinement
in SHU without a timely hearing did not damage claimant "[i]nasmuch as there was
no evidence that the same result would not have been obtained had the hearing
been held in a timely manner, and inasmuch as the only housing for inmates not
in the temporary release program was the locked wing, . . . " (id., at
Moreover, the right involved in this action--claimant's right to forty-eight
hours in which to decide how to dispose of excess property--does not rise to the
level of importance necessary to trigger any exception to the general rule that
no cause of action exists unless and until actual injury is sustained. Although
the underlying interest involved is claimant's right to possess property, the
property is chattel rather than real property (see Kronos , Inc. v AVX
Corp., 81 NY2d 90, 95). Claimant was never entitled to possess this
particular property, as it exceeded the number of books and magazines allowed by
Directive No. 4913; additional time was unlikely to alter the ultimate fate of
the property; and claimant had (although he chose not to pursue) an opportunity
to postpone disposition of the property by challenging its designation as
contraband. Claimant's interest in retaining possession of contraband is of
minimal, if any, importance, and he had an avenue for challenging the
determination; the State's interest in retaining control of its prisons and the
contents of inmates' housing areas is vitally significant; and the procedural
step involved--a requirement that amounts to little more than additional time
for reflection on choices that are extremely limited and almost entirely
dependent upon the availability of specific resources--was unlikely to affect
Consequently, even if the Court considers the additional allegations contained
in claimant's Reply to Affirmation in Opposition, views the proposed claim as
incorporating those additional allegations and accepts that claimant could prove
he was deprived of the forty-eight hour period of consideration, there is still
"no reasonable cause to believe that a valid cause of action exists" (Matter
of Santana v New York State Thruway Auth., 92 Misc 2d 1, supra).
This factor argues strongly against granting claimant's requested relief.
Taking into account the six statutorily prescribed factors, the Court therefore
finds them to weigh against granting claimant's motion for permission to file a
late claim. Consequently, the Court denies the motion.
June 30, 2000
HON. SUSAN PHILLIPS READ
Judge of the Court of Claims
The Court notes other communications from claimant to the Clerk of the Court,
specifically a letter dated January 2 and received January 6, 2000; a letter
dated January 5 and received January 10, 2000; and a letter dated February 21
and received February 25, 2000. These letters were not considered in connection
with the motion, as they did not address its merits.
There are additional documents tracing claimant's appeal of his grievance at two
levels, with the reviewing bodies concluding that he had voluntarily elected to
have the contraband donated to a charity rather than accept a misbehavior report
so that there could be a hearing on the matter.
After the State filed and served its submission in opposition to the motion and
the return date had passed, claimant submitted a second affidavit. Because
claimant is a layperson who is appearing pro se
and because it benefits
all concerned to avoid duplicative motions and requests for reargument, the
Court will address the issues raised in this affidavit, although not obligated
to do so.