New York State Court of Claims

New York State Court of Claims

BARRETT v. THE STATE OF NEW YORK, #2000-001-036, Claim No. NONE, Motion No. M-60959


Claimant's motion for permission to file a late claim is denied.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant's attorney:
Eddie Barrett, Pro Se
Defendant's attorney:
Hon. Eliot Spitzer, NYS Attorney GeneralBy: Carol C. Poles, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
June 30, 2000

Official citation:

Appellate results:

See also (multicaptioned case)


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, 2000.[1]

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 NY2d 979).

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 litigation.

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 (id.).

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:
  1. An Inmate Account statement showing that on June 22, 1999, claimant had a total of $90.53 in his account.
  1. 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."
  1. 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."

  1. 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.
  1. 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.
  1. Claimant's Inmate Grievance Complaint, dated July 2, 1999, in which he protests the "taking of personal property w/o fair notice."
  1. 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.
  1. 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 resources.

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 ["Reply Aff."])[3] 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 [4]).

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 property:
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 guidelines.
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 24)]).

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 the outcome.

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
Albany, New York

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.