New York State Court of Claims

New York State Court of Claims

WILSON v. MR. GLENN S. GOORD - COMMISSIONER, DOCS; THE STATE OF NEW YORK AND MR. WILLIAM LAPE - ACTING SUPERINTENDENT, FIVE POINTS CORRECTION FACILITY, #2002-005-545, Claim No. NONE, Motion No. M-65457


Synopsis


Claimant's motion for permission to file a late claim is granted.

Case Information

UID:
2002-005-545
Claimant(s):
MR. KIMREE WILSON
Claimant short name:
WILSON
Footnote (claimant name) :

Defendant(s):
MR. GLENN S. GOORD - COMMISSIONER, DOCS; THE STATE OF NEW YORK AND MR. WILLIAM LAPE - ACTING SUPERINTENDENT, FIVE POINTS CORRECTION FACILITY
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
NONE
Motion number(s):
M-65457
Cross-motion number(s):

Judge:
DONALD J. CORBETT, JR.
Claimant's attorney:
Kimree Wilson, Pro Se
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Timothy P. Mulvey, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
October 21, 2002
City:
Rochester
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

On August 14, 2002, the following papers, numbered 1 to 4, were read on motion by Claimant for permission to file a late claim:

Papers Numbered

1, 2 Notice of Motion and Affidavit and Exhibits Annexed
  1. Opposing Affirmation and Exhibits Annexed
  2. Filed Paper: Claim No. 105203
Upon the foregoing papers, this motion is granted.

This is Claimant's motion for permission to file a late claim. It appears that Claimant had previously filed Claim No. 105203, on or about November 13, 2001, making similar allegations. Thereafter, in a decision and order filed on June 25, 2002, in Motion No. M-65011, Presiding Judge Susan Phillips Read dismissed that claim for lack of proper service. That dismissal led to Claimant's instant application for permission to file a late claim pursuant to Court of Claims Act §10(6).

The proposed claim alleges a claim for the loss of personal property at Five Points Correctional Facility, to wit, an Islamic Prayer Robe (Jalabiyah) on or about September 7, 2001.

Claimant's supporting papers allude to the statutory factors enumerated in §10(6). As an excuse for the failure to timely file, Claimant asserts ignorance of the law and an alleged inability to pay mailing costs for certified mail, return receipt requested, as required by §11. He asserts that the Defendant had notice of the essential facts underlying his claim and the opportunity to investigate because certain employees of the Defendant were present and that reports and memoranda of this incident were written. He also reports that several grievances and complaints were filed. No copies of any such documents were supplied with the moving papers. He does opine that his claim is meritorious, and that he has no other remedy.

The Defendant opposes the relief on the ground that Claimant has failed to establish a central element of his claim, proof of ownership of the property in question. The element of ownership, while a necessary element of proof at trial, does not necessarily require proof at this juncture. All that is required is the standard set forth in Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1, 11, for the appearance of meritoriousness: a showing that the claim "must not be patently groundless, frivolous or legally defective" and that upon consideration of the entire record, including the proposed claim and any exhibits or affidavits, "there is reasonable cause to believe that a valid cause of action exists." I note further that here Claimant and Defendant have referenced to Claim No. 105203, which has appended to it as an exhibit an inmate claim form, apparently satisfying the requirement of §10(9) that a claimant exhaust his administrative remedies with respect to a bailment. Here it is somewhat unclear whether the allegations sound in bailment or merely negligence in the alleged negligent inclusion of personal property, the prayer robe, with state-issued clothing and bedding which was destroyed for health/medical reasons. In any event, the Defendant does not raise the failure to exhaust such remedies in opposition to the motion.

Thus, after considering the various statutory factors, and the proposed claim and supporting papers, I will exercise my discretion and permit Claimant to serve and file the claim herein in accordance with §§11 and 11-a within 45 days of service of a file-stamped copy of this order. Claimant is reminded that he must serve his claim in a manner prescribed by statute (§11[a]), to wit, certified mail, return receipt requested.


October 21, 2002
Rochester, New York

HON. DONALD J. CORBETT, JR.
Judge of the Court of Claims