New York State Court of Claims

New York State Court of Claims

MATTHEWS v. THE STATE OF NEW YORK, #2001-001-040, Claim No. 102119, Motion No. M-63419


Synopsis



Case Information

UID:
2001-001-040
Claimant(s):
ERNEST MATTHEWS
Claimant short name:
MATTHEWS
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
102119
Motion number(s):
M-63419
Cross-motion number(s):

Judge:
Susan Phillips Read
Claimant's attorney:
Ernest Matthews, Pro Se
Defendant's attorney:
Hon. Eliot Spitzer, NYS Attorney GeneralBy: Joel L. Marmelstein, Esq., Assistant Attorney General, Of Counsel
Third-party defendant's attorney:

Signature date:
June 29, 2001
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers were read and considered on claimant's motion for an order restoring his claim to the trial calendar and granting a fee reduction pursuant to CPLR 1101 (f): Notice of Motion, dated April 20 and filed April 26, 2001; Affidavit of Ernest Matthews, pro se, sworn to April 20 and filed April 26, 2001, with annexed Exhibits; Affirmation in Opposition of Joel L. Marmelstein, Esq., AAG, dated and filed May 11, 2001; Affidavit of Nancy Taranto, sworn to May 9 and filed May 11, 2001, with annexed copy of excerpt from Hudson Correctional Facility's log book for March 31, 2000; and the claim, sworn to March 1 and filed March 13, 2000, with annexed unmarked Exhibits.

Claimant Ernest Matthews ("claimant") filed this bailment claim, pro se, on March 13, 2000. Because claimant did not include the filing fee required by Court of Claims Act 11-a (1) or an application for a filing fee reduction pursuant to CPLR 1101 (f), the Court entered an order directing the Clerk of the Court to close the file unless claimant filed the fee reduction application within 30 days of the date of the order (Matthews v State of New York, Ct Cl, unreported order dated and filed March 29, 2000). The order was served by mail upon claimant at his then current Hudson Correctional Facility address on the same day. The 30-day time period expired without claimant having submitted the required waiver form, which had been enclosed with the order. Accordingly, the file was closed by Daily Report dated May 12, 2000.[1]

By motion filed April 26, 2001, claimant moves to restore his claim to the trial calendar, stating that he never received this Court's order directing him to file a reduction application (Affidavit of Ernest Matthews, pro se, sworn to April 20 and filed April 26, 2001, with annexed Exhibits ["Matthews Aff."], ¶¶ 1, 9-10). Defendant State of New York ("defendant" or "the State") opposes the motion arguing that claimant's proffered excuse that he did not receive the Court's order directing him to submit a fee reduction application is not plausible since claimant was unquestionably at Hudson Correctional Facility during the relevant time period and received the State's answer and responded to a motion to dismiss which had been sent to the same address (see, n 1, supra) (Affirmation in Opposition of Joel L. Marmelstein, Esq., AAG, dated and filed May 11, 2001, ¶ 3). Defendant also offers an affidavit of Hudson Correctional Facility's Inmate Mail Clerk which attests that claimant signed for and picked up legal correspondence from the Court of Claims on March 31, 2000 (Affidavit of Nancy Taranto, sworn to May 9 and filed May 11, 2001 ["Taranto Aff."], ¶ 3, annexed copy of excerpt from Hudson Correctional Facility's log book for March 31, 2000 ["log book entry"]).

The Affidavit of Nancy Taranto details the procedure used to screen out legal mail from ordinary mail at Hudson Correctional Facility. She states that based on the return addresses of the incoming mail, any item that appears to be of a legal nature is separated out of the ordinary mail and logged into a "special register" (Taranto Aff., ¶ 2). The inmate recipient is then issued a "call out" slip to appear to pick up his legal mail (id.) The inmate must show proof of identification and must also sign for the legal mail after it is opened and "screened" in his presence to ensure that it is not contraband (id.).[2] Claimant's signature on the photocopy of the March 31, 2000 log book signifies that he picked up legal mail from the Court of Claims on that day pursuant to the abovementioned procedure (log book entry). A review of the Court's file indicates that there was no other document sent to claimant during that time period except for the Court's order. The Court credits the objective evidence of the March 29, 2000 order's receipt by claimant submitted by the State and, consequently, discounts claimant's proffered excuse for his failure to abide by the Court's order (Matthews Aff., ¶ 9).

Accordingly, the Court denies claimant's motion to restore his claim to the trial calendar; and denies his remaining request for a fee reduction pursuant to CPLR 1101 (f) as moot.


June 29, 2001
Albany, New York

HON. SUSAN PHILLIPS READ
Judge of the Court of Claims




  1. [1]The Hon. Diane L. Fitzpatrick issued an order denying a CPLR 3211 (a) (7) motion by defendant State of New York after the file had already been closed (Matthews v State of New York, Ct Cl, unreported decision filed Sept. 21, 2000, Fitzpatrick, J., M-61559 [bailment cause of action fails but claimant may have a common-law negligence claim]). The motion had been filed on April 13, 2000, before the claim file had been closed.
  2. [2]The mail is not read during this screening procedure (Taranto Aff., ¶ 2).