New York State Court of Claims

New York State Court of Claims

CAMPBELL v. THE STATE OF NEW YORK, #2002-011-526, Claim No. None, Motion No. M-64421


Synopsis


Claimant's application to late file is granted in the manner required by CCA §11.

Case Information

UID:
2002-011-526
Claimant(s):
LARRY G. CAMPBELL, 79 C 0029
Claimant short name:
CAMPBELL
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-64421
Cross-motion number(s):

Judge:
THOMAS J. McNAMARA
Claimant's attorney:
Larry G. Campbell, Pro Se
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Elyse J. Angelico, Esq.,Assistant Attorney General
Third-party defendant's attorney:

Signature date:
September 3, 2002
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision


The proposed claim alleges that ten boxes containing legal material were not returned toclaimant after he was transferred from Tappan Correctional Facility to Upstate Correctional Facility in December 2000. The proposed claim alleges a cause of action for loss of personal property and contains an allegation that the loss of the material represents an attempt to deprive claimant of his right to free speech.

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. The claim was served by regular mail but according to claimant, he submitted a request to have the claim served by certified mail return receipt requested. He asserts that the disbursement form for the certified mailing is attached to the motion as exhibit A. However, no disbursement form is included among the papers submitted.[1] Though claimant may have requested certified mailing, he has not established the fact here.

Other factors to be considered are whether Defendant had notice of the essential facts of the claim and an opportunity to investigate. Claimant maintains that he submitted inmate claim forms which provided notice and an opportunity to investigate the claimed loss. As defendant does not dispute that claims were made at the facility level, the State had notice of the essential facts of this claim, and an opportunity to investigate, at least with respect to the claim for loss of personal property. Claimant, however, does not set forth any factual basis to establish that defendant was aware of his claim that he was subjected to harassment in retaliation for exercising his right to free speech.

Inasmuch as defendant had notice and an opportunity to investigate the property loss claim, no prejudice is apparent from the delay in filing with respect to that portion of the proposed claim. As more than a year has passed since the property was lost and defendant was not made aware of a claim that the property loss would also be the basis for a claim of interference with the right to free speech, defendant's ability to investigate and defend against that portion of the claim may have been hindered by the delay.

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 exists (Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1). On that basis, the alleged failure to return personal property of claimant in its possession together with the allegation by claimant that he has exhausted his administrative remedy, provides the portion of the proposed claim sounding in bailment with the necessary appearance of merit. However, the assertion by claimant in his affidavit in support of the motion that the loss of the legal material places in jeopardy the prosecution of other pending meritorious actions, is insufficient to establish the merit of a claim for constitutional tort.

No adequate alternate remedy is available.

On balance, consideration of the factors in CCA §10(6) weigh in favor of granting the motion with respect to the cause of action sounding in bailment but not with respect to the claim of interference with the right to free speech. 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.

September 3, 2002
Saratoga Springs, New York

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



Papers Submitted:

  1. Notice of Motion dated December 4, 2001
  2. Affidavit in Support of Larry G. Campbell sworn to the 15th day of November, 2001 with attachments
  3. Affirmation in Opposition of Elyse J. Angelico, Esq. dated January 11, 2002 with exhibits annexed
  4. Notice of New Motion to Late File Claim dated February 25, 2002
  5. Affidavit in Support sworn to the 26th day of February, 2002
  6. Affirmation in Opposition of Elyse J. Angelico, Esq. dated June 22, 2001 filed on March 18, 2002

[1]Exhibit A is a letter to the Chief Clerk of the court dated June 14, 2001.