New York State Court of Claims

New York State Court of Claims

JOHNSON v. THE STATE OF NEW YORK, #2000-019-527, Claim No. NONE, Motion No. M-61687


Claimant's motion for permission to file late claim relative to three separate bailment causes of action was 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):

Claimant's attorney:
Defendant's attorney:
BY: Eileen E. Bryant, Assistant Attorney General, of counsel
Third-party defendant's attorney:

Signature date:
July 18, 2000

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant, an inmate proceeding pro se, seeks permission to file a late claim pursuant to Court of Claims Act (hereinafter "CCA") 10 (6).

The Court has considered the following papers in connection with this motion:
  1. Notice of Motion No. M-61687, dated February 29, 2000 and filed March 8, 2000.
  2. Affidavit of Johnathan Johnson, in support of motion, dated and sworn to February 29, 2000, with attached exhibits.
  3. Proposed Claim, sworn to February 29, 2000.
  4. Affirmation of Eileen E. Bryant, AAG, in opposition to motion, dated and filed May 31, 2000, with attached exhibits.
  5. "Claimant's Reply to Defendant's Affirmation in Opposition", dated June 1, 2000 and filed June 8, 2000, with attached exhibits.
The proposed claim is composed of three underlying causes of action sounding in bailment. A brief description of each alleged incident is as follows:
1. June 3, 1998: Property bag lost or missing during Claimant's transfer from Southport Correctional Facility to Shawangunk Correctional Facility (hereinafter "Shawangunk").
2. June 9, 1998: Hot pot confiscated and destroyed by Shawangunk personnel.
3. August 14, 1998:[1] Visitor package not delivered to Claimant.[2]

As a threshold issue, the Court notes that it has jurisdiction to review and determine this motion since it was filed within three years from the date each of the alleged incidents accrued. (CPLR 214; CCA 10 [6]).

Turning to the substance of the motion, the factors the Court must consider in determining a properly framed CCA 10 (6) motion are whether:

1. the delay in filing the claim was excusable,

2. the State had notice of the essential facts constituting the claim,
3. the State had an opportunity to investigate the circumstances underlying the claim,

4. the claim appears to be meritorious,
5. 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

6. there is any other available remedy.

The Court will discuss these factors relative to all three proposed causes of action collectively, except where separate treatment is otherwise indicated.

Claimant's only attempted excuse for his delay is that he had insufficient funds to properly serve now dismissed Claim No. 98851. It is well-settled that inmates are entitled to advances for legal mail, as well as a free weekly allowance for postage. (7 NYCRR 720.8[b], [c]; 721.4 & 721.5). As such, Claimant has failed to set forth a reasonable excuse for his delay.

With respect to notice of the essential facts, Claimant attempts to establish the State had "full knowledge" of these incidents by submitting a "Motion Information Form" filed in an action entitled "Johnson v Gummerson" in the United States Court of Appeals, Second Circuit, on January 3, 2000. (Johnson Affidavit, ¶ 4, Exhibit A). The relevance of this document to the issue of notice with respect to any of the alleged incidents is unclear. In any event, the Court does find the State obtained timely notice of the visitor package incident from its timely receipt of Claim No. 98851, albeit improperly served and now dismissed. Consequently, the Court finds the State had notice of the visitor package claim, but did not have notice of either the hot pot or missing property bag incidents. Furthermore, the Court finds that without timely notice the State did not have an opportunity to investigate either the hot pot or missing property bag incidents, but did have the opportunity to investigate the visitor package incident. In addition, the Court finds the State will not suffer substantial prejudice if the requested relief is granted.

Whether the proposed claim appears meritorious has been characterized as the most decisive component in determining a motion under CCA 10 (6), since it would be futile to permit a meritless claim to proceed. (Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1). In order to establish a meritorious claim, it is Claimant's burden to show the proposed claim is not patently groundless, frivolous, or legally defective and there is reasonable cause to believe that a valid claim exists. (Matter of Santana v New York State Thruway Auth., supra, 92 Misc 2d, at 11). Claimant has offered nothing in support of his allegations of merit in connection with any of these alleged claims. For example, Claimant has not submitted any inventory property forms (I-64 forms), receipts, and/or grievance complaints from which this Court might conclude Claimant owned any of the property or that the State ever took possession of these items. In the absence of such proof, Clamant has offered only conclusory allegations of the merit of any of these proposed causes of action which is insufficient to support a finding of merit. (Witko v State of New York, 212 AD2d 889, 891). Accordingly, the Court cannot find reasonable cause to believe that a valid claim exists with respect to any of these three incidents.

Finally, neither party argues that Claimant has any other forum to bring these claims. This factor weighs in Claimant's favor on all three proposed causes of action.

Accordingly, upon reviewing and balancing all of the factors enumerated in CCA 10 (6), the Court finds the following:

1. With respect to the June 3, 1998 missing property bag incident and the June 9, 1998 hot pot incident, the Court finds four factors including the all important issue of merit weigh against Claimant; and

2. With respect to the August 14, 1998 visitor package incident, the Court finds two factors including the all important issue of merit weigh against Claimant.

In view of the foregoing, IT IS ORDERED that Claimant's motion for permission to file a late claim, Motion No. M-61687, is DENIED in its entirety.

July 18, 2000
Binghamton, New York

Judge of the Court of Claims

Claimant refers to July 18, 1998 as both the date a correction officer refused to deliver his package and the date he filed a grievance complaint, but August 14, 1998 as the date a correction officer advised him that his package was "donated". For purposes of continuity, the Court will refer to the August 14, 1998 date.
This Court previously dismissed a Claim relative to the visitor package incident due to Claimant's failure to comply with the service requirements of CCA 11 (a). (Johnson v State of New York, Ct Cl., February 18, 2000, Lebous, J., Claim No. 98851, Motion No. M-61105).