New York State Court of Claims

New York State Court of Claims

DeRUGGIERO v. THE STATE OF NEW YORK, #2000-014-527, , Motion No. M-61331


Application for late claim by State inmate, alleging improper disbursements from his inmate account, is denied; claimant did not demonstrate that the proposed claim appears to be meritorious.

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):

S. Michael Nadel
Claimant's attorney:
Dominic DeRuggiero, Pro se
Defendant's attorney:
Eliot Spitzer, Attorney General
By: Grace A. Brannigan and Susan J. Pogoda, Assistant Attorneys General
Third-party defendant's attorney:

Signature date:
October 11, 2000
New York

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers were read on claimant's application for permission to file a late claim pursuant to Court of Claims Act §10(6): Motion for Permission to File a Late Claim and Exhibits annexed; Affirmation in Opposition and Exhibit annexed; Claimant's Supplemental Submission and Exhibits annexed; Attorney General's Supplemental Affirmation.

The claimant alleges that, due to the negligence of the defendant, from 1994 through 1996, while he was an inmate in the custody of the defendant, funds were taken from his inmate account. The Attorney General, in opposition, notes that this application was filed more than three years after the latest of those dates, so that the Court does not have jurisdiction to entertain the claimant's application to file a claim alleging negligence, which must be brought "before an action asserting a like claim against a citizen of the state would be barred under the provisions of article two the civil practice law and rules." Court of Claims Act §10(6). See, CPLR 214.

The application raises the question of whether, depending upon the circumstances under which the defendant held funds (see, e.g. Correction Law §187) which the claimant alleges were taken from him, the proposed claim may sound in contract, in which case it was filed within the appropriate statute of limitations. CPLR 213(2). See, Video Corporation of America v Frederick Flatto Associates, Inc., 58 NY2d 1026 [overruled, with respect to nonmedical malpractice actions, by amendment of CPLR 214(6) (Laws of 1996, Ch. 623), see, Ruffolo v Garbarini & Scher, P.C., 239 AD2d 8, 11].

Contrary to the Attorney General's argument, the issue is not whether the payment of wages to a State inmate implicates a contractual relationship. Upon the record presented, the circumstances suggest that such a relationship arises out of the fact that an inmate's funds are held "in trust" (as characterized in the Attorney General's Supplemental Affirmation, ¶3), by the defendant. Thus, at least for the purpose of determining this application, and upon the record before the Court, it appears that the Court has jurisdiction to grant relief under §10(6), and has considered the factors listed therein. See, Bay Terrace Cooperative Section IV, Inc. v New York State Employees' Retirement System Policemen's and Firemen's Retirement System, 55 NY2d 979, 981.

Upon the circumstances presented by the claimant, the delay in filing the claim was not excusable. It appears from correspondence annexed to his submission that he did not file a claim because he was awaiting a response from Department of Correctional Services officials to his complaint that funds were missing from his inmate account.

Although the defendant asserts that the State did not have notice of the essential facts constituting the claim, or an opportunity to investigate the circumstances underlying the claim until this application was served, it appears from the claimant's submission that officials at the Department of Correctional Services were notified of his complaint at least as early as June 1996. The defendant's submission makes no reference to what action, if any, was taken in response. The only indication that the failure to file a timely claim or notice of intention has resulted in substantial prejudice to the State, as asserted by the Assistant Attorney General, is the statement in a memorandum dated July 23, 1999 from the Department of Correctional Services to the claimant, annexed to the claimant's submission, that records of disbursements are "kept for 3 years. 1994 have been destroyed."

In the absence of specific factual support of the State's opposition with respect to the statutory factors of notice, opportunity to investigate, and prejudice caused by the delay, those factors are presumed to weigh in the claimant's favor. See, Calzada v State of New York, 121 AD2d 988; Cole v State of New York, 64 AD2d 1023, 1024.

The claimant has not demonstrated that the proposed claim appears to be meritorious. He alleges, in conclusory terms, that disbursements were improperly made from his inmate account. Such allegations, without more specific factual support, are insufficient to establish that the claim appears to be meritorious. Witko v State of New York, 212 AD2d 889, 891; Calco v State of New York, 165 AD2d 117, 119, lv denied 78 NY2d 852; Simpson v State of New York, 96 AD2d 646; Sevillia v State of New York, 91 AD2d 792. The statements of his inmate account which he submitted, covering 1994 through 1996, do not appear to be mathematically incorrect.

The failure to demonstrate that a proposed claim appears to be meritorious weighs heavily against granting permission to file a late claim. McCarthy v New York State Canal Corporation, 244 AD2d 57, lv denied, 92 NY2d 815; Klingler v State of New York, 213 AD2d 378; Savino v State of New York, 199 AD2d 254; Prusack v State of New York, 117 AD2d 729.

It does not appear that the claimant has any other available remedy.

Having considered the relevant statutory factors, Bay Terrace, supra, the application is denied.

October 11, 2000
New York, New York

Judge of the Court of Claims