New York State Court of Claims

New York State Court of Claims

LAU v. THE STATE OF NEW YORK, #2001-028-574, Claim No. NONE, Motion No. M-64086


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:
HONDO LAU, pro se
Defendant's attorney:
BY: Eileen E. Bryant, Esq. Assistant Attorney General
Third-party defendant's attorney:

Signature date:
December 24, 2001

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers were read on Claimant's motion for permission to late file a Claim

pursuant to Court of Claims Act § 10(6)

• abAffirmation in Opposition of Assistant Attorney General Eileen E. Bryant filed October 9, 2001, (Bryant Opposition) with annexed Exhibits A-C.

Claimant seeks the Court's permission to late file a claim against the Defendant. The proposed claim alleges that following his transfer from Eastern Correctional Facility to Upstate Correctional Facility, certain of his property, which had been entrusted to the defendant, was, for whatever reason, not returned to him. The Defendant opposes the motion, inter alia, based on the Claim's alleged lack of merit.

A bailment claim is subject to a three-year statute of limitations which commences when the bailee refuses to deliver the property when demanded by the bailor. Here, Claimant timely commenced his administrative review procedure which resulted in a partial award, confirmed by the Superintendent on February 28, 2001. Clearly, as a threshold issue, Claimant's application for permission to late file his claim made on or about September 17, 2001 is timely filed within the relevant statute of limitations provided by Article 2 of the CPLR.

It is well-settled that the factors a Court must consider in determining a properly framed CCA 10 (6) motion are whether 1) the delay in filing the claim was excusable, 2) the State had notice of the essential facts constituting the claim, 3) the State had an opportunity to investigate the circumstances underlying the claim, 4) the claim appears to be meritorious, 5) 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 6) there is any other available remedy (see, Matter of Gavigan v State of New York, 176 AD2d 1117, 1118; Bay Terrace Coop. Section IV v New York State Employees Retirement System, Policemen's & Firemen's Retirement Sys., 55 NY2d 979, 981).

Claimant offers a paragraph of excuses for his delay in filing the claim, namely incarceration, difficulty with the English language and lack of access to legal references (Hondo Affidavit, ¶ 2).[2] Neither ignorance of the law, even for pro se litigants, nor the Claimant's status as an inmate is an acceptable excuse (Innis v State of New York, 92 AD2d 606, affd 60 NY2d 654 [ignorance of law]; Hall v State of New York, 85 AD2d 835 [inmate]). Although an inmate who shows that he was denied all access to a law library and was not allowed legal resources in his cell may have a viable excuse (see, Roman v The State of New York, (Ct Cl, Bell, J.) Motion No. M-61933, UID #2000-007-045, (August 14, 2000)[3] claimant's bare allegation, lacking in any personal detail, falls far short of such a showing. Equally without merit is the excuse that there is a language barrier (Rodrigues v State of New York, 143 AD2d 993; Figueroa v City of New York, 92 AD2d 908). Therefore, the Court finds these excuses to be without merit and weighs this factor against Claimant.

The factors of notice, an opportunity to investigate and substantial prejudice will be considered together. While the Defendant does not concede these factors, there is little room for any discussion, where as here, Claimant followed the administrative procedure to seek redress for the alleged missing property and, was partially successful. Moreover, this is not Claimant's first attempt at instituting this Claim and the delay has not been lengthy. Accordingly, the Court finds these factors weigh in favor of Claimant's application.

The most decisive component in determining a motion under CCA 10 (6) is whether the proposed claim appears to be meritorious, since it would be futile to permit a meritless claim to proceed. (Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1, 10). Claimant must establish the proposed claim is not patently groundless, frivolous, or legally defective and that there is reasonable cause to believe that a valid claim exists. (Matter of Santana v New York State Thruway Auth., supra, at 11). Generally, in reviewing the allegations in the proposed claim any "[f]acts stated in a motion for leave to file a late claim against the State are deemed true for purpose of motion, when not denied or contradicted in opposing affidavits [citations omitted]." (Sessa v State of New York, 88 Misc 2d 454, 458, affd 63 AD2d 334, affd 47 NY2d 976). While Defendant's assertion that Claimant received his property based upon certain documentary evidence (Bryant Affirmation, ¶ 13) is squarely aimed at the merits of the Claim, that assertion is belied by the fact the Defendant approved and paid part of the Claim. Lastly, the failure of Claimant to establish the value of the items does not render the claim meritless. What value Claimant can establish, even if only de minimus[4], is a matter for trial given Claimant has for purposes of this motion established possession of the items. On this record, the Court cannot say the claim for the remaining items, rejected by Defendant in the administrative process, is groundless, frivolous or legally defective.

Finally, neither party argues that Claimant has any other forum to bring this claim. This factor weighs in Claimant's favor on the proposed cause of action.

Taking into account the six statutorily prescribed factors, the Court finds them to weigh in favor of granting claimant's motion for permission to file a late claim. Accordingly, it is

ORDERED, that Motion No. M-64086 is hereby GRANTED, and claimant is directed to serve a claim upon the Attorney General identical to the proposed claim attached to the moving papers and to file the claim with the Clerk of the Court of Claims within 45 days from the filing date of this decision and order, with such service and filing to be in accordance with the requirements of Court of Claims Act, §§ 10, 11 and 11-a, and the Uniform Rules for the Court of Claims.

December 24, 2001
Albany, New York

Judge of the Court of Claims

[1] Claimant's statement in support of his application to late file is not in affidavit form but has been duly verified, as has been the proposed Claim. Accordingly, for purposes of the instant application the Court will treat same as in proper form.
[2] Claimant also asserts he first filed his claim on July 23, 2001 with the Court, but that the Claim was returned to Claimant because it was lacking signatures and was without the required fee (Ct Cl Act § ) or CPLR Article 11 application. Pursuant to Court of Claims Act 10 (9) that filing was untimely.

[3] Recent decisions of the Court of Claims are available in a searchable database on the Internet, free of charge. Access may be gained through the Court of Claims website at

[4] With respect to value, Claimant must satisfy the court of the fair market value of the items in question. Phillips v Catania, 155 AD2d 866 (4th Dept. 1989); Schaffner v Pierce, 75 Misc 2d 21 (Nassau Co. Dist. Ct. 1973). Receipts are generally the best evidence of fair market value, although uncontradicted testimony concerning replacement value is acceptable.