New York State Court of Claims

New York State Court of Claims

CORDERO v. THE STATE OF NEW YORK, #2000-015-047, Claim No. None, Motion No. M-61604


Court of Claims Act § 10 (9) will not be applied retroactively to claims accruing before its effective date.

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:
Nelson Cordero, Pro Se
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Joel L. Marmelstein, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
July 13, 2000
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


The application of movant for an order pursuant to Court of Claims Act § 10 (6) permitting him to serve and file a late claim is granted upon the condition that the claim be served and filed within 60 days of the date of filing of this decision and order. The proposed claim is brought by an inmate appearing pro se seeking to recover the sum of $424.00 as the reasonable value of items of personal property allegedly lost through the negligence of employees of the Department of Correctional Services (DOCS) at Marcy Correctional Facility. The proposed claim alleges that at approximately 12:30 p.m. on June 21, 1999 claimant was told to report to Sergeant Drymond and was advised that he was going to be removed from his dorm and placed in a Special Housing Unit. Movant's request for permission to return to his dormitory to obtain his eyeglasses and lock his locker was denied, although he was supplied with his glasses. Movant asserts that while held in the Special Housing Unit at Marcy he was prevented from viewing his personal property and that he made various administrative complaints concerning his property which were not responded to. The proposed claim avers that movant was later transferred to Upstate Correctional Facility at which time he viewed his property and discovered that certain items were missing. Movant pursued an administrative claim at Marcy Correctional Facility which was disapproved upon initial review on December 13, 1999 on the basis that movant's administrative claim was not filed in a timely manner and was presented at the wrong correctional facility. The form upon which the initial denial was transmitted to movant advised him that if he was dissatisfied he could avail himself of an administrative appeal to either the Superintendent or the Director of Budget and Finance. It does not appear that the movant pursued an appeal, instead serving a notice of intention to file a claim which was received by the Attorney General on January 28, 2000. This motion for late claim relief ensued.

Subdivision 6 of section 10 of the Court of Claims Act permits this Court, if the applicable Statute of Limitations set forth in article 2 of the CPLR has not expired, to allow the filing of a late claim upon consideration of the following factors: "whether the delay in filing the claim was excusable; whether the state had notice of the essential facts constituting the claim; whether the state had an opportunity to investigate the circumstances underlying the claim; whether the claim appears to be meritorious; whether the failure to file or serve upon the attorney general a timely claim or to serve upon the attorney general a notice of intention resulted in substantial prejudice to the state; and, whether the claimant has any other available remedy".

Turning to the statutory factors, this Court has broad discretion in deciding a motion to permit the late filing of a claim (Ledet v State of New York, 207 AD2d 965), and the statutory factors are not exhaustive or one factor controlling (Matter of Gavigan v State of New York, 176 AD2d 1117). The most important factor is whether the potential claim has merit, as it would be a futile exercise to permit litigation of a clearly baseless lawsuit (Savino v State of New York, 199 AD2d 254).

The first issue for resolution is whether this claim is governed by Court of Claims Act § 10 (9) which became law on August 9, 1999 (L 1999, ch 412) and which took effect on December 7, 1999. Subdivision 9 provides:
9. A claim of any inmate in the custody of the department of correctional services for recovery of damages for injury to or loss of personal property may not be filed unless and until the inmate has exhausted the personal property claims administrative remedy, established for inmates by the department. Such claim must be filed and served within one hundred twenty days after the date on which the inmate has exhausted such remedy.
In the case of Mathis v State of New York, Ct Cl, July 13 , 2000 [Claim No. 102059, Motion No. M-61437], J. Collins, this Court joined with Judge McNamara (Stroud v State of New York, Ct Cl, June 27, 2000, [Claim No. 101957, Motion No. M-61384], McNamara, J., unreported); and Judge Lane, Scott v State of New York, Ct Cl, June 15, 2000, [Claim No. 101879, Motion No. M-61385], Lane, J., unreported) in holding that Court of Claims Act § 10 (9) will not be applied retroactively to claims accruing before its effective date. As a consequence, this motion will be determined under the law existing prior to December 7, 1999.

As the claim sounds in negligence, the three year Statute of Limitations set forth in CPLR § 214 applies and the motion is timely.

The excuse advanced for the failure to timely pursue a claim is that movant was ignorant of the applicable law and was not afforded timely legal assistance. Ignorance of the applicable legal requirements is not an acceptable excuse (Griffin v John Jay College, ____ AD2d ____, 697 NYS2d 278) and the excuse factor weighs against granting the application.

The intertwined issues of notice, opportunity to investigate and prejudice to the State will be considered together. The letters from various DOCS officials attached as exhibits to the motion papers establish that as early as July 21, 1999 the claimant had written to DOCS personnel complaining with regard to the loss of personal property. The alleged inconsistencies in the I-64s referred to by defense counsel are matters for resolution at trial. The prompt notice afforded DOCS by claimant's letters establishes an opportunity to investigate and any prejudice that might result to the State is a result of the failure to act upon the notice received. The factors of notice, opportunity to investigate and prejudice weigh in favor of granting the motion.

As to the appearance of merit, the movant must only demonstrate that the proposed claim is not "patently groundless, frivolous or legally defective" and "there is a reasonable cause to believe a valid cause of action does exist" (Rosenhack v State of New York, 112 Misc 2d 967, 969, 970). In the Court's view, movant has met that burden.

As to the last factor, it does not appear that movant has an other available remedy as his administrative claim was denied as not timely and filed at the incorrect facility.

A review of the motion record and the statutory factor leads the Court to determine that late claim relief is appropriate.

July 13, 2000
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
  1. Notice of motion dated February 22, 2000;
  2. Affidavit of Nelson Cordero sworn to February 22, 2000, with exhibits;
  3. Proposed claim verified on February 22, 2000;
  4. Affirmation in opposition of Joel L. Marmelstein dated May 16, 2000, with exhibits.