New York State Court of Claims

New York State Court of Claims

SAMPER v. THE STATE OF NEW YORK, #2001-010-021, Claim No. NONE, Motion No. M-63036


Claimant's late claim application did not show the appearance of merit of his claim and 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):

Terry Jane Ruderman
Claimant's attorney:
Defendant's attorney:
Attorney General for the State of New YorkBy: Elyse Angelico, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
March 9, 2001
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers numbered 1-2 were read and considered by the Court on claimant's late claim application:
Notice of Motion, Claimant's Unsworn Supporting "Affidavit," Motion for Permission to File a Late Claim and Exhibits..........................................................1

Attorney's Affirmation in Opposition.......................................................................2

Claimant, an inmate proceeding pro se, alleges that his personal property was missing and damaged on July 4, 2000, August 22, 2000 and September 6, 2000 (Claimant's "Affidavit," ¶6). Specifically, on July 4, 2000, his army coat, Casio watch and orthopedic boots were missing and his headphone and calculator were broken. He does not specify what "other several items" were missing on August 22, 2000 (Claimant's Motion, ¶3). On September 6, 2000, claimant's property was allegedly taken from his cell by another inmate (Claimant's Motion, ¶4); while claimant refers to a number of his items that were recovered in another inmate's cell, claimant does not list the property that was allegedly taken from his cell. Claimant's exhibits and Inmate Claim Forms dated September 7, 2000 and August 29, 2000 were completed by claimant and detail the missing and broken items and their original cost, age and condition, except the August 29, 2000 form does not specify the items' age and condition.

The determination of a motion for leave to file a late claim requires the Court to consider, among other relevant factors, the six factors set forth in Subdivision 6 of Section 10 of the Court of Claims Act: (1) whether the delay in filing the claim was excusable; (2) whether the State had notice of the essential facts constituting the claim; (3) whether the State had an opportunity to investigate the circumstances underlying the claim; (4) whether the claim appears to be meritorious; (5) whether the failure to file or serve a timely claim or serve a timely notice of intention resulted in substantial prejudice to the State; and (6) whether the claimant has another available remedy. The presence or absence of any one factor is not determinative and the list of factors is not exhaustive (see, Bay Terrace Coop. Section IV v New York State Employees' Retirement System Policemen's & Firemen's Retirement System, 55 NY2d 979).

The Court has considered the aforenoted six factors. Claimant's purported excuses for his failure to timely serve and file a claim are essentially ignorance of the law which is not a valid excuse (see, Innis v State of New York, 92 AD2d 606, affd 60 NY2d 654). Additionally, the State would be substantially prejudiced by a granting of claimant's application more than seven months after the alleged incidents which are the basis of the claim (see, Maurantonio v State of New York, 266 AD2d 290 [eight month delay unreasonable]).

Most significantly, claimant has failed to demonstrate the appearance of merit of the proposed claim (see, Qing Liu v City Univ. of N. Y., 262 AD2d 473; Matter of Gallagher v State of New York, 236 AD2d 400). Unlike a party who has timely filed a claim, a party seeking to file a late claim has the heavier burden of demonstrating that the claim appears to be meritorious (see, Nyberg v State of New York, 154 Misc 2d 199; Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1). Here, even giving this pro se claimant the most liberal reading of his papers, he has failed to establish the appearance of merit of his claim. Despite claimant's purported attempt to secure documentation supporting his claim, he has failed to submit anything other than his own self-serving unsworn statements and Inmate Claim Forms. He does not submit an I-64 Form nor any receipts. Thus, claimant failed to establish his ownership of the items or their value and did not show the appearance of merit of his claim.

Accordingly, upon weighing all the factors, claimant's motion for leave to file a late claim is DENIED.

March 9, 2001
White Plains, New York

Judge of the Court of Claims