New York State Court of Claims

New York State Court of Claims

FELICIANO v. THE STATE OF NEW YORK, #2000-014-524, , Motion No. M-61823


Synopsis


Application for permission to file a late claim is denied for failure to include a proposed claim, with leave to renew upon submission of an application which includes a proposed claim. The claim, concerning the bailment of a State inmate's property, would not be barred by the statute of limitations as a result of the enactment of subdivision 9 of Court of Claims Act §10, which became effective December 7, 1999, since that subdivision does not apply to claims which accrued prior to that date.

Case Information

UID:
2000-014-524
Claimant(s):
FRANK FELICIANO
Claimant short name:
FELICIANO
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):

Motion number(s):
M-61823
Cross-motion number(s):

Judge:
S. Michael Nadel
Claimant's attorney:
Frank Feliciano, Pro se
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Susan J. Pogoda, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
October 10, 2000
City:
New York
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision


The following papers were read on claimant's application for permission to file a late claim pursuant to Court of Claims Act §10(6): Notice of Motion, Affidavit and Exhibits annexed; Affirmation in Opposition and Exhibit annexed.


The claimant, a State inmate appearing pro se, seeks permission to file a late claim, sounding in bailment, arising out of the same circumstances as those underlying Claim No. 101268, which, by Order filed March 23, 2000 (Motion No. M-60812), was dismissed on the defendant's motion, on the ground that it had been served and filed more than 90 days after its accrual, on July 16, 1999. The claimant had opposed that motion on the basis of his assertion that he was under a legal disability. See, Court of Claims Act §10(5).

In its Order, the Court stated:
The claimant's submission is inadequate to support his assertion of a continuing disability. [citations omitted]. While the Court might otherwise, sua sponte, afford the claimant the opportunity to supplement his submission in this regard, it appears from a reading of the claim that it does not satisfy the requirements of Court of Claims Act §11(b); it does not specify the items of property he alleges to have been kept by the defendant and not returned to him. As such, it would be subject to a motion to dismiss.

Under the circumstances, therefore, the defendant's motion is granted; the claim is dismissed. The claimant may wish to apply to the Court for permission to file a late claim, pursuant to the provisions of Court of Claims Act §10(6). If any such application is forthcoming, it should include a proposed claim which specifies the particular items of property; it should also include any further support, such as medical records, for the claimant's assertion that he is, or was, under a legal disability.
Although the claimant's submission herein does include, in his affidavit and in exhibits, an itemization of the property he alleges was taken from him and not returned, the application does not include a proposed claim, as required by Court of Claims Act §10(6).

The claimant's motion is, therefore, denied, with leave to renew upon submission of an application which includes a proposed claim. In this regard, the Court notes that the claim would not, as argued by the Attorney General, be barred by the statute of limitations by application of the provisions of subdivision 9 of Court of Claims Act §10. As recently decided by Judge McNamara of this Court (Stroud v State of New York, 184 Misc 2d 876), those provisions do not apply to claims which accrued prior to the effective date of that subdivision, December 7, 1999.

October 10, 2000
New York, New York

HON. S. MICHAEL NADEL
Judge of the Court of Claims