New York State Court of Claims

New York State Court of Claims

ORAMA v. THE STATE OF NEW YORK, #2002-010-012, Claim No. NONE, Motion No. M-64276


Synopsis


Claimant's motion for leave to file a late claim is denied.

Case Information

UID:
2002-010-012
Claimant(s):
DAVID ORAMA
Claimant short name:
ORAMA
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
NONE
Motion number(s):
M-64276
Cross-motion number(s):

Judge:
Terry Jane Ruderman
Claimant's attorney:
DAVID ORAMAPro Se
Defendant's attorney:
HON. ELIOT SPITZER
Attorney General for the State of New YorkBy: Elyse Angelico, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
February 7, 2002
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers numbered 1-4 were read and considered by the Court on claimant's motion for leave to file a late claim:
Notice of Motion,[1] Claimant's Supporting Affidavit and Exhibits...........................1

Affirmation in Opposition and Exhibits.......................................................................2

Claimant's Reply Affidavit.......................................................................................3

Defendant's Supplemental Affirmation and Exhibit.................................................4

Claimant's Proposed Claim (Claimant's Ex. A) alleges that on February 13, 2001, his personal property was wrongfully confiscated from his cell at Sing Sing Correctional Facility ("Sing Sing") by Sing Sing staff. The items are: a Yamaha electric keyboard; a carrying case; two music books; four framed paintings done by claimant.

Court of Claims Act § 10(6) requires that the Court consider, among other relevant factors: (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 determinative and the list of factors is not exhaustive (see, Bay Terrace Coop. Section IV v New York State Employees' Retirement System Policemen's & Firemen's Retirement System, 55 NY2d 979).

Claimant failed to offer a reasonable excuse for the delay (see, Broncati v State of New York, ___AD2d___, 732 NYS2d 365). Additionally and most significantly, claimant has failed to show the appearance of merit of his claim (see, Ruiz v State of New York, 220 AD2d 734 [failure to offer valid excuse for delay; late claim application denied]; Sevillia v State of New York, 91 AD2d 792 [late claim application denied where allegations of negligence were general and conclusory and without any supporting facts]). Unlike a party who has timely filed a claim, a party seeking to file a late claim has the heavier burden of demonstrating that the claim appears to be meritorious (see, Nyberg v State of New York, 154 Misc 2d 199; Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1).

According to the unrefuted documentation submitted in opposition to claimant's motion, on February 13, 2001, the facility was informed that the property which is the subject of this claim actually belonged to a former inmate and that claimant refused to return it (Defendant's Ex. F). The facility commenced an investigation and seized the property along with a quart of urine hidden under claimant's bed (urine is commonly bought or sold in the facility and used to deceive urine analysis tests). Claimant was issued a Misbehavior Report on February 16, 2001 regarding the items in his possession (Defendant's Ex. G). Claimant was found not guilty of all allegations except the Unhygenic Act (Defendant's Ex. A to Supplemental Response).[2] Thereafter, the items were returned to claimant and on May 19, 2001 claimant mailed the items to Denise Orama (Ex. E). Thus, the claim has no appearance of merit.

Upon review of all the relevant factors, claimant has failed to establish entitlement to a granting of his application.

Accordingly, claimant's motion for leave to file a late claim is DENIED.

February 7, 2002
White Plains, New York

HON. TERRY JANE RUDERMAN
Judge of the Court of Claims




[1] Claimant labels his motion as one "For an Enlargement of Time;" it is, in substance, seeking leave to file a late claim.
[2] Claimant filed a grievance alleging that the Misbehavior Report was false (Defendant's Ex. H). On May 2, 2001, the grievance was denied as unsubstantiated (Defendant's Ex. H).