New York State Court of Claims

New York State Court of Claims

BRAXTON v. THE STATE OF NEW YORK, #2000-016-031, Claim No. 100574, Motion No. M-61059


Pro se inmate's late claim motion concerning destruction of personal property at correctional facility 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):

Alan C. Marin
Claimant's attorney:
David Braxton
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Carol C. Poles, AAG
Third-party defendant's attorney:

Signature date:
May 30, 2000
New York

Official citation:

Appellate results:

See also (multicaptioned case)


This is the motion of pro se claimant David Braxton for permission to file a late claim pursuant to §10.6 of the Court of Claims Act (the "Act"). Braxton's proposed underlying claim arises from the destruction of items of his personal property at Collins Correctional Facility. On June 18, 1999, Braxton filed claim no. 100574, which is identical to the proposed claim in this motion. However, he admittedly failed to serve defendant with the claim,[1] hence this motion followed.

Braxton asserts that on March 19, 1999, as he was about to be transferred from Otisville Correctional Facility to Collins Correctional Facility, his personal property was inventoried and packed into 19 bags. After arriving at Collins, on April 2, 1999, he was brought to see what consisted of four bags of his property. At that time, he signed an "Authorization for Disposal of Personal Property" form directing that certain items, i.e., perishables and hangers, be destroyed. He asserts that he also wanted other items to be destroyed, but was informed that after the remaining 15 bags arrived, he would be brought back to inventory all of the bags together.
On April 16, 1999, Braxton was taken to see the remainder of his property, i.e., the additional 15 bags. He was allegedly told that the items had to either be destroyed or sent outside the facility. According to claimant, he asked why the previous four bags were not there, and was told that those four bags were the maximum that were allowed to be kept at the facility and that any additional bags had to be destroyed or sent outside. Claimant states that he tried to explain that he was homeless and was attempting to find an address where the bags could be sent. At that time, he signed another "Authorization for Disposal of Personal Property" form (apparently with regard to the additional 15 bags); this time, directing that certain items be destroyed and certain be sent outside at his expense. Although a shipping address is listed on the form, claimant had apparently not in fact been successful in finding a location for shipment and apparently had not been successful by May 4, 1999, when a sergeant told him that his property would be destroyed. Claimant states that two weeks later, he learned that his property had been destroyed; a May 12, 1999 memo attached to claimant's papers indicates that the destruction of his property had occurred one to two weeks earlier.
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In determining whether to grant this motion, the six factors enumerated in the Act must be considered. The factors are not necessarily exhaustive, nor is the presence or absence of any particular one controlling[2]: whether (1) the defendant had notice of the essential facts constituting the claim; (2) the defendant had an opportunity to investigate the circumstances underlying the claim; (3) the defendant was substantially prejudiced; (4) the claimant has any other available remedy; (5) the delay was excusable and (6) the claim appears to be meritorious.

The first, second and third factors -- whether the state had notice of the essential facts, whether the state had an opportunity to investigate and whether the state would be prejudiced by the granting of this motion are intertwined and may be considered together. See William Kleen, The New York State Court of Claims: A Procedural Guide, 19 Trial Law Q 49, 59 (Spring 1988); Avila v State of New York, 131 Misc 2d 449, 500 NYS2d 626 (Ct Cl 1986). As set forth above, the exact date of the destruction of Braxton's property is unclear – one to two weeks before May 12, 1999, i.e., late April to early May of 1999. A review of the documents annexed to Braxton's papers shows that up until that time and even after, he wrote several memoranda to facility personnel seeking to prevent the destruction of the property and communicating efforts to find a shelter where his property could be sent. Overall, the documentation on this matter is sufficient to permit defendant to investigate and defend Braxton's claim and thus on balance, claimant satisfies the notice-opportunity-prejudice factors of the Act.

As to excuse, Braxton asserts that he had no access to the law library during "the statutory period for filing." Braxton does not explain how this alleged lack of access prevented service of his claim -- since he was able to prepare and file a claim in a timely fashion. He also asserts that defendant encumbered all of his incoming funds to pay the $180.98 postage cost to him of shipping his property from Otisville to Collins, leaving him "indigent" and unable to pay for service of the claim on defendant. He does not explain how he had money to pay for postage for filing the claim. Nor does claimant contest defendant's statement that correctional facilities advance inmates the cost of sending legal mail should they have insufficient funds in their account. In short, Braxton fails to satisfy the excuse factor of the Act. With regard to an alternate remedy, it appears undisputed that the Court of Claims is the sole venue for this claim.

The remaining factor to be considered is the merit of Braxton's claim. Defendant argues that the claim lacks merit because claimant, "like all other inmates, was only allowed to retain four bags of personal property. All other excess property must either be shipped out of the facility at the inmate's expense to a specific location or destroyed pursuant to regulations. Movant had no place to ship his excess personal property by his own admission. Therefore, the excess property was destroyed pursuant to regulations." ¶6 of the Poles Aff.

However, the DOCS directives supplied by defendant do not indicate that an inmate is per se limited to four bags of property at a given facility. The directives do provide that an inmate being transferred is limited to the transfer of four bags of property, and that if there is excess property beyond the four bags, it will be transferred to the new facility at the inmate's cost. See §§II.B.1 and II.B. 5 of DOCS Directive No. 4913. That was apparently done in this case and claimant was charged $180.98 for shipping his excess property from Otisville to Collins. Section II.A.6 of directive No. 4913 provides that if a sergeant or security supervisor believes that an inmate possesses excessive personal property in an amount that constitutes a fire or health hazard or unreasonably clutters his cell or room, the inmate may be required to dispose of the property, but defendant has made no assertion that any of these conditions existed in the case of Braxton's property.

In sum, claimant satisfies the test of Matter of Santana v NYS Thruway Authority, 92 Misc 2d 1, 11, 399 NYS2d 395, 402-3 (Ct Cl 1977): (i) the claim must not be patently groundless, frivolous or legally defective and (ii) upon consideration of the entire record, including the proposed claim and any exhibits or affidavits, "there is reasonable cause to believe that a valid cause of action exists."

In view of the foregoing, having reviewed the parties' submissions,[3] IT IS ORDERED that David Braxton's motion no. M-61059 is granted and within ninety (90) days of the filing of this order, he shall serve and file his claim in accordance with §11 of the Court of Claims Act. IT IS ALSO ORDERED, sua sponte, that claim no. 100574 is dismissed on the grounds that this Court lacks jurisdiction over the claim because of claimant's failure to serve the claim on defendant.

May 30, 2000
New York, New York

Judge of the Court of Claims

  1. [1]See, e.g., ¶2 of claimant's "Motion for Permission to File a Late Claim"; ¶4 of the February 11, 2000 affirmation of Carol C. Poles (the "Poles Aff."); and ¶3 of the January 28, 2000 affidavit of Carol A. McKay.
[2] See Bay Terrace Coop. Section IV, Inc. v New York State Employees' Retirement Sys. Policemen's and Firemen's Retirement Sys., 55 NY2d 979, 449 NYS2d 185 (1982); Scarver v State of New York, 233 AD2d 858, 649 NYS2d 280 (4th Dept 1996).
  1. [3]Along with the pleadings, the Court reviewed claimant's notice of motion, "Motion for Permission to File a Late Claim," proposed claim and undesignated exhibits; and defendant's affirmation in opposition, attached affidavit of Carol A. McKay and Exhibit A.