New York State Court of Claims

New York State Court of Claims

EDWARDS v. THE STATE OF NEW YORK, #2001-013-026, , Motion No. M-63697


An inmate's motion to late file a bailment claim is adjourned to permit additional submissions on the issue of whether administrative remedies have been exhausted. While failure to exhaust administrative remedies, required by Court of Claims Act §10(9), is an affirmative defense, and exhaustion of remedies need not be alleged in a timely filed claim, the question must be addressed where permission is sought to late file, because no valid cause of action exists unless such exhaustion has occurred.

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:
HON. ELIOT SPITZERAttorney General of the State of New York
Third-party defendant's attorney:

Signature date:
December 7, 2001

Official citation:

Appellate results:

See also (multicaptioned case)


On August 15, 2001, the following papers were read on Claimant's motion for permission to file an untimely claim:
1. Notice of Motion of Matthew Edwards, pro se
2. Affirmation in Opposition: None Received

3. Filed Papers: None Claimant has moved for permission to late file a claim alleging that as a result of Defendant's failure to fulfill its duty to protect his personal property, the property was damaged or destroyed by other inmates at Orleans Correctional Facility.

Claimant has attached a notarized affidavit of service stating that a copy of the motion papers was served on the Attorney General, and the Chief Clerk of the Court sent to the Claims Bureau of the Department of Law a copy of his receipt letter, which indicated the motion number assigned to this motion and the return date assigned to it. Defendant has neither made a submission in response to the motion nor communicated with the Court about the motion.

Claimant asserts that his cause of action accrued on January 16, 2001, and a like action against a citizen would not be barred by the applicable statute of limitations (CPLR 214). In determining a motion for permission to file a late claim, the Court must 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 dispositive (Bay Terrace Coop. Section IV v New York State Employees' Retirement Sys. Policemen's and Firemen's Retirement Sys., 55 NY2d 979).

Claimant presents no excuse for his failure to timely commence his claim. He asserts, however, that the State had notice of the essential facts constituting the claim "as evidenced by the March 19, 2001 correspondence of Carol T. Caban, Senior Budget Analyst." No copy of this correspondence is attached to the motion papers, but in the absence of any opposing argument from Defendant, there is no reason for me to question its existence or effect. Claimant also asserts that the State had an opportunity to investigate the circumstances underlying the claim, and again, I have no basis for questioning that assertion. Because the proposed claim arose within the State's prison system, it appears that Claimant has no realistic remedy against any party other than the State.

A proposed claim has sufficient appearance of merit if, on its face, it is not patently groundless, frivolous, or legally defective, and there is reasonable cause to believe that a valid cause of action exists (Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1). Claimant alleges that his property "was damaged and destroyed by inmates of Orleans C.F. without fault of the claimant while he was at his required program module." This allegation sets forth, at least at a minimal level, a cause of action for bailment (9 NY Jur 2d, Bailments and Chattel Leases, §1).

There is an additional consideration here, however. A claim brought by a State prison inmate who seeks to recover for property damage or loss cannot be filed unless the inmate had exhausted the "personal property claims administrative remedy" established by the Department of Correctional Services (DOCS) (Court of Claims Act §10[9]), and Claimant's proposed claim does not contain any allegation that this has occurred. While this exhaustion of remedies requirement has been termed a "condition precedent" to commencing such an action (Washington v State of New York, Ct Cl, Aug 10, 2000 [Claim No. 101820, Motion No. M-61554], Collins, J. [MacLaw #2000-015-062),[1] I am not convinced that in the normal course, it is an element that must be pled by the Claimant. In the analogous context of an article 78 proceeding, which cannot be maintained until administrative remedies have been exhausted (see, CPLR 7801[1]), the Fourth Department has stated that "[f]ailure to exhaust administrative remedies is not an element of an article 78 claim for relief, but an affirmative defense which must be raised by respondent either in an answer or by preanswer motion or else be deemed waived" (Matter of Warwick v Henderson, 117 AD2d 1001; see also, e.g., Matter of Hilton v Dalsheim, 81 AD2d 887; Matter of Waite v Coombe, 247 AD2d 663).

If Claimant had filed this claim in a timely fashion, it would not be considered inadequate or obviously meritless on its face. However, in order to establish that there is "reasonable cause to believe that a valid cause of action exists" (Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1, supra), it is not inappropriate to impose a somewhat higher pleading requirement, particularly where, as here, the information omitted from the proposed claim is so critical to the substantive merit of the action. "[I]t would be futile to permit the filing of a legally deficient claim which would be subject to immediate dismissal, even if the other factors tend to favor the granting of the request" (Prusack v State of New York, 117 AD2d 729, 730; see also, Savino v State of New York, 199 AD2d 254;), and permitting a meritless claim to be late filed has been held to be reversible error (Yonkers Construction Co. v State of New York, 74 NY2d 682; Berger v State of New York, 171 AD2d 713).

It is impossible, on the information currently before me, to determine if there is reasonable cause to believe that a valid cause of action exists. The proposed claim does not contain allegations that Claimant has taken the steps necessary to commence an action of this nature, and there is nothing else submitted, by either party, that speaks to the issue of whether he has exhausted his administrative remedies. It is even possible that he is currently pursuing such remedies, which would mean that this motion is unnecessary, as he could file a claim as of right at any point that they are exhausted. Accordingly, in the interest of judicial economy, I will adjourn this motion to February 20, 2002, to allow both parties to make further submissions on the question of whether Claimant's administrative remedies have been exhausted.

December 7, 2001
Rochester, New York

Judge of the Court of Claims

  1. [1]This decision may be found on the Court of Claims website at