Movant's application for an order pursuant to Court of Claims Act § 10 (6)
permitting him to serve and file a late claim is granted. Movant, an inmate
appearing pro se and currently incarcerated at the Marcy Correctional Facility,
seeks permission to file a late claim for money damages arising from the alleged
loss of personal property valued at $198.29, $600.00 in unspecified damages and
costs of approximately $20.00. Movant alleges that on November 21, 2000 an
unidentified correction officer packed five bags of movant's personal property
upon his transfer to a special housing unit (SHU) but only four bags were
received at the SHU. It appears from the documentation attached to the motion
that movant pursued an administrative personal property claim which was
disapproved on January 4, 2001. Movant was notified of the denial of his
administrative appeal in writing dated February 10, 2001 and advised that a
claim could be filed in the Court of Claims within 120 days of the final
determination of his administrative claim.
Instead of filing his claim and serving it upon the Attorney General movant,
within 120 days of notification of the administrative denial, filed and served
the instant motion for late claim relief. Assistant Attorney General Joel
Marmelstein thereafter advised movant by letter dated May 1, 2001 that since
Court of Claims Act § 10 (9) provided 120 days for the filing of a claim
after exhaustion of the movant's administrative remedy the time to file a timely
claim had not yet expired and would not expire until June 10, 2001.
Marmelstein suggested that movant withdraw his motion.
In response to Marmelstein's suggestion movant forwarded to the Court a request
to withdraw the motion for late claim relief. Such request, however, also
sought to have "the Court proceed with the Claim as already filed with the
motion for permission to late file."
Movant's administrative remedy was exhausted by the denial of his
administrative appeal on February 10, 2001. He had 120 days thereafter to serve
and file his claim, a time period which expired during the pendency of this
Subdivision 6 of section 10 of the Court of Claims Act permits this Court, if
the applicable Statute of Limitations set forth in article 2 of the CPLR has not
expired, to allow the filing of a late claim upon consideration of the
following factors: "whether the delay in filing the claim was excusable;
whether the state had notice of the essential facts constituting the claim;
whether the state had an opportunity to investigate the circumstances underlying
the claim; whether the claim appears to be meritorious; whether 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 whether the claimant has any other available remedy".
The first issue for determination upon a late claim motion is whether the
application is timely. Since the proposed claim asserts a negligence cause of
action, the three year Statute of Limitations set forth in CPLR § 214
applies and the motion is properly before the Court.
Turning to the statutory factors, this Court has broad discretion in deciding a
motion to permit the late filing of a claim (Ledet v State of New York,
207 AD2d 965), and the statutory factors are not exhaustive or one factor
controlling (Matter of Gavigan v State of New York, 176 AD2d 1117). The
most important factor is whether the potential claim has merit, as it would be a
futile exercise to permit litigation of a clearly baseless lawsuit (Savino v
State of New York, 199 AD2d 254).
The excuse advanced for the failure to timely serve and file a claim with
respect to the November 21, 2000 property loss is movant's ignorance of the
applicable legal requirements. Ignorance of the law is not an acceptable excuse
(Griffin v John Jay College, 266 AD2d 16).
The intertwined issues of notice, opportunity to investigate and prejudice to
the State will be considered together. The specifics concerning the transfer of
movant's property are memorialized in documents within the defendant's
possession thus negating prejudice (Remley v State of New York, 174 Misc
2d 523, 524). In addition, movant reported the incident to DOCS employees
within one week of the occurrence by filing an inmate claim form. Under these
circumstances, the Court finds that the factors of notice, opportunity to
investigate and lack of prejudice favor granting the motion.
As to the appearance of merit, the movant must only demonstrate that the
proposed claim is not "patently groundless, frivolous or legally defective" and
"there is a reasonable cause to believe a valid cause of action does exist"
(Rosenhack v State of New York, 112 Misc 2d 967, 969, 970). In the
Court's view, movant has met that burden.
As to the final factor, it does not appear that movant has any other remedy
with respect to his property loss as his administrative appeal was denied.
A review of the motion record and statutory factors leads the Court to
determine that late claim relief is appropriate with respect to claimant's
personal property loss allegedly occurring on November 21, 2000.
Movant is directed to file and serve upon the Attorney General a verified claim
as provided in Court of Claims Act § 11 (a) within 30 days of service upon
him of a copy of the decision and order herein.