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.