New York State Court of Claims

New York State Court of Claims



Claimant's motion for permission to file a late claim is 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:
James Fullwood,
Pro Se
Defendant's attorney:
Eliot Spitzer, Attorney General
By: Edward F. McArdle, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
November 14, 2001

Official citation:

Appellate results:

See also (multicaptioned case)


On September 19, 2001, the following papers, numbered 1 to 6, were read on motion by Claimant for permission to file a late claim:

1, 2 Notice of Motion, Affidavit in Support and Exhibits Annexed
  1. Opposing Affirmation and Exhibits Annexed
  2. Affirmation in Reply
5, 6 Filed Papers: Claim, Order in Motion No. M-63368 filed June 19, 2001

Upon the foregoing papers, this motion is denied.

By Order filed on June 19, 2001, I denied Claimant's motion (Motion No. M-63368) for a default judgment, finding, inter alia, that he had failed to provide adequate proof of service of the claim upon the Defendant. Not surprisingly, Claimant now brings a motion for permission to file a late claim, ostensibly pursuant to Court of Claims Act §10(6), and utilizes the same document (Claim No. 103204) as his proposed claim. First, given Claimant's inability to establish service of said claim upon the Defendant, and further noting that the filed claim is not verified (Martin v State of New York, 185 Misc 2d 799), Claim No. 103204, is dismissed, sua sponte.

Claimant seeks permission to file a late claim relating to the monitoring and logging of his mail, all of which was the subject of an inmate grievance filed on January 19, 2000, and thereafter on March 30, 2000. Apparently other grievances were filed on February 17, 2000 and May 31, 2000. All of these seem to regard allegations of tampering with Claimant's mail, including what he alleges to be legal mail. To the extent that Claimant has alternatively requested dismissal of his claim to allow him to "move this case for Federal Intervention since the merits of the claim state a Federal Question", the previously filed claim has been dismissed herein, sua sponte. I have no authority or inclination to term such dismissal "without prejudice," as Claimant has requested. The dismissal speaks for itself. Of course, this dismissal pertains to the existing filed, but unserved claim, and not the proposed late claim. As to the motion for permission to file the proposed late claim, the motion is denied.

The proposed claim is difficult to discern and comprehend, but as best I can decipher the same, it appears that on or about December 20, 1999, Claimant attempted to file a petition for a writ of habeas corpus, but that the mail was forwarded back to him, albeit not getting to him, and it was allegedly found in a garbage can on or about January 17, 2000. Claimant apparently filed grievances with respect to the handling of this mail, and a decision was rendered on or about March 30, 2000. Thereafter Claimant alleges that on or about May 30, 2000, certain other legal mail had been opened outside of his presence, purportedly in violation of certain Directives of the Department of Correctional Services.

Claimant fails to address the threshold question of whether this motion is timely made, within the parameters of article 2 of the CPLR. Indeed it is difficult to ascertain whether he is complaining about intentional torts, but that is the most decipherable cause(s) of action from his papers. In that regard, Claimant's protestations to the contrary, the decision of Judge Francis T. Collins in Campolito v the State of New York, Claim No. 94670, April 27, 2000, appears to be on point as it addresses interference with legal mail, albeit with his finding that the missing video tape there would have had no bearing on that habeas corpus proceeding. Of course here I am unable to reach the same conclusion. Nonetheless, and more to the point, is the holding in Campolito that "claimant did not set forth any legal basis to support a recovery of money damages. Therefore, the claim cannot sound in negligence since ‘allegations of intentional conduct cannot form the basis of a claim founded in negligence' (Dunn v Brown, 261 AD2d 432, 433)."

Claimant's motion for a late claim here was forwarded for mailing on August 1, 2001 (see Unigard Insurance Group v State of New York, ______AD2d _____, 731 NYS2d 195), and to the extent that it alleges an intentional tort, such motion should have been filed within one year of the accrual of the cause of action (Court of Claims Act §10[3-b]; CPLR 215). The latest date complained of in the proposed claim is May 31, 2000, and thus this application, forwarded on August 1, 2001, is untimely made more than one year after accrual.

Even if not untimely, the motion would be denied in any event. In reviewing the six factors listed in Court of Claims Act §10(6), Claimant asserts, without any support whatsoever, that his failure to serve the claim on Defendants is excusable, although he gives no reason for the lateness of his service and filing. Unlike more traditional pleadings, it is difficult to ascertain when this claim accrued. Indeed, in his reply papers, Claimant misstates the law at Paragraph 6, because he believes that he had to exhaust his administrative remedies before seeking relief here. To the contrary, it is only in the case of lost personal property that exhaustion is required, and even that requirement is quite recent (Court of Claims Act §10[9], L.1999, c.412, pt. D, Section 2, effective December 7, 1999). The exhaustion of administrative remedies may well be required prior to the commencement of an article 78 proceeding, but was not a prerequisite to filing a claim here. The purported exhaustion of administrative remedies also does not provide an acceptable excuse for the failure to timely file.

Claimant has referred to the various grievances he has filed, and a notice of intention to demonstrate that the Defendant had timely notice of the essential facts, and an opportunity to investigate. There is some discussion of a notice of intention to file a claim, apparently sworn to on April 20, 2000, but neither party has supplied a copy thereof to the court, and since notices of intention have not been accepted for filing since 1995 (L. 1995, c. 466), it is not before me. In any event, to the extent that the notice of intention was purportedly sworn to on April 20, 2000, it could not be used to show timely notice for events which occurred thereafter, to wit, events continuing to happen until May 30, 2000. With respect to an alternative remedy, Claimant himself describes a federal court action which he seems to prefer.

Most significantly, Claimant has failed to show the appearance of meritoriousness of his proposed claim. Claimant asserts that it is "quite clear that this claim presents a federal question and therefore, by a clear showing has merit. . . ." If this claim presents a federal question and can be read as seeking such relief, then Claimant is in the wrong court (see, Zagarella v State of New York, 149 AD2d 503). Claimant's assertion of a clear showing of merit is self-serving and unsupported.

According to the proposed claim, the purported causes of action sound in "Negligence in Law", "Negligence Per Se", "Negligently Done", "Gross Negligence" and "Passive Negligence", but these appear to be recitations from a legal dictionary, and are not addressed to the underlying allegations. Claimant also asserts Statutory Damages, Accumulative Damages, Irreparable Damages, and Incidental Damages. Claimant argues that there are violations of the State Constitution regarding equal protection of the law, in essence implying that the delay with respect to the letter in December 1999 allegedly prevented him from challenging the constitutionality of his conviction, and for that he seeks damages. In order to demonstrate merit, he would, at a minimum, have to persuade me that he had a meritorious challenge to his conviction, and that the supposed delay was a significant factor in preventing his otherwise successful challenge. He has not done so.

Accordingly, as the proposed claim does not have merit, and Claimant has failed to demonstrate that the other factors predominate in favor of this application, I decline to exercise my discretion to allow the claim to be filed. The motion is denied.

November 14, 2001
Rochester, New York

Judge of the Court of Claims