New York State Court of Claims

New York State Court of Claims

BYAS v. THE STATE OF NEW YORK, #2002-011-504, Claim No. NONE, Motion No. M-64127


Synopsis


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

Case Information

UID:
2002-011-504
Claimant(s):
WALTER BYAS
Claimant short name:
BYAS
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-64127
Cross-motion number(s):

Judge:
THOMAS J. McNAMARA
Claimant's attorney:
Walter Byas, Pro Se
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Eileen E. Bryant, Esq., Assistant Attorney General
Third-party defendant's attorney:

Signature date:
January 11, 2002
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision


The proposed claim is based on allegations that items of claimant's personal property werelost and damaged during the process of claimant being transferred from one correctional facility to another.

When considering a motion for permission to late file a claim, the court is required to address six factors enumerated in Court of Claims Act §10(6). The first of those factors is whether there is a reasonable excuse for the delay in filing. According to Claimant, the delay was caused by the need to devote time to other pending legal matters.

Other factors to be considered are whether Defendant had notice of the essential facts of the claim and an opportunity to investigate. Claimant filed an institutional claim well within the ninety day period following accrual and therefore, defendant had notice and an opportunity to investigate. Given that defendant had notice and an opportunity to investigate and in the absence of a showing of some other relevant factor, the delay in filing has not caused substantial prejudice to defendant.

Also to be considered is whether the proposed claim has an appearance of merit. A claim is said to have merit when it is not patently groundless, frivolous or legally defective and there is reason to believe that a valid cause of action exist (Matter of Santana v New York StateThruway Auth., 92 Misc 2d 1). On that basis, the allegations that two bottles of protein powder were lost, and that his typewriter was damaged in transit provides the proposed claim with the necessary appearance of merit.

No adequate alternate remedy is available.

On balance consideration of the factors in CCA §10(6) weigh in favor of granting the motion. Claimant is to serve and file the proposed claim in the manner required by Court of Claims Act §11 within thirty days of service upon him of a file-stamped copy of this order.

January 11, 2002
Saratoga Springs, New York

HON. THOMAS J. MCNAMARA
Judge of the Court of Claims



Papers Submitted:

  1. Notice of Motion dated September 25, 2001
  2. Affidavit in Support of Walter Byas sworn to the 25th day of September, 2001 with exhibits annexed
  3. Affirmation in Opposition of Eileen E. Bryant, Esq. dated November 15, 2001