New York State Court of Claims

New York State Court of Claims

DELANO v. THE STATE OF NEW YORK, #2001-027-571, , Motion No. M-62359


Pro Se late claim motion.

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:
Sedney Delano, Pro Se
Defendant's attorney:
Hon. Eliot Spitzer, Attorney GeneralBy: Elyse Angelico, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
June 14, 2001
New York

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers were reviewed by the Court on this motion: Claimant's Notice of Motion, Claimant's Affidavit and annexed Exhibit A-C, Claimant's Proposed Claim, Defendant's Affirmation in Opposition and annexed Exhibit A.

Claimant, Sedney Delano, a pro se inmate, has moved for permission to serve and file a late Claim pursuant to §10(6) of the Court of Claims Act(CCA).

Claimant, an inmate currently residing at the Southport Correctional Facility(Southport), alleges that on or about April 18, 2000, during his transfer from the Sing Sing Correctional Facility(Sing Sing) to Southport, one bag of his personal property was lost due to the negligence of defendant, the State of New York. Claimant lists the contents of the missing bag as being his personal legal work.

The Court of Claims Act §10(6) grants upon the Court the discretion to allow the filing of a late claim provided the Statute of Limitations as set forth in article 2 of the CPLR has not elapsed. In determining whether relief to file a late claim should be granted, the Court must take into consideration the factors set forth in §10(6) of the Court of Claims Act. Bay Terrace Cooperative Section IV, Inc. v. New York State Employees' Retirement System Policemen's and Firemen's Retirement System, 55 NY2d 979 (1982). The factors are not necessarily exhaustive, nor is the presence or absence of any particular one controlling. Id. They are whether (1) the delay in filing the claim was excusable; (2) the defendant had notice of the essential facts constituting the claim; (3) the defendant had an opportunity to investigate the circumstances underlying the claim; (4) the claim appears to be meritorious; (5) the defendant was substantially prejudiced; and (6) the claimant has any other available remedy.

However, at the time this motion was filed, September 12, 2000, claimant had failed to exhaust his administrative remedies as required by CCA §10(9) before filing a Claim in the Court of Claims. Claimant sent a letter to the Court dated September 27, 2000 stating that he was in the process of obtaining the cost of the lost legal work. Consequently, this motion was premature. Additionally, pursuant to CCA §10(9), claimant has 120 days to file a Claim without the necessity of a late Claim motion once he has exhausted his administrative remedies.

Lastly, according to a letter to the Court from the Attorney General's Office dated April 10, 2001 and the attached memorandum from Southport, it appears that claimant has already received all his legal work which was the subject of this motion.

Therefore, for the foregoing reasons, claimant's motion is denied.

June 14, 2001
New York, New York

Judge of the Court of Claims