New York State Court of Claims

New York State Court of Claims

VEGA v. STATE OF NEW YORK, #2002-011-566, Claim No. NONE, Motion No. M-65075


Synopsis


Claimant's motion for permission to late file a claim based on allegations that his legal mail was opened outside his presence and that the State delayed in delivering that mail is denied.

Case Information

UID:
2002-011-566
Claimant(s):
DAVID VEGA
Claimant short name:
VEGA
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
NONE
Motion number(s):
M-65075
Cross-motion number(s):

Judge:
THOMAS J. McNAMARA
Claimant's attorney:
David Vega, Pro Se
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Kathleen M. Resnick, Esq.,Assistant Attorney General
Third-party defendant's attorney:

Signature date:
July 29, 2002
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant has moved for permission to late file a claim which is based on allegations that

his legal mail was opened outside his presence and that the State delayed in delivering that mail. According to claimant the delay in delivering that mail, an Order from Supreme Court, New York County, granting him time to retain new counsel in a civil action in which he is the plaintiff, may have jeopardized his chances of prevailing in that matter. Claimant also maintains that in opening legal mail outside his presence defendant violated one of its own directives.

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 occasioned by his efforts to resolve the matter with the Department of Correctional Services. However, while his efforts to resolve the matter without resort to litigation is commendable, he nonetheless should have taken some action to preserve his claim when it became apparent that the matter would not be resolved before the applicable filing period expired.

Other factors to be considered are whether defendant had notice of the essential facts of the claim and an opportunity to investigate. Claimant has included among the papers submitted in support of the motion letters he wrote to officials in the Department of Correctional Services in an attempt to have them take action to alleviate the harm he believed was caused by the delay in delivering his mail. Thus, the State had notice and an opportunity to investigate. In addition, no apparent prejudice has resulted from the delay in filing.

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). The allegations in the proposed claim and claimant's affidavit are insufficient to establish an appearance of merit. First, claimant has not shown how long the mail was in the hands of the Department of Correctional Services before it was given to him. He assumes that because the Order is dated August 31, 2001 and was not delivered to him until October 11, 2001 that the delay was substantial. Although the envelope in which the mail was sent was thrown away, claimant apparently made no effort to determine who mailed the Order, i.e. the court, the withdrawing attorney or defendant's attorney, and when the Order was mailed. More importantly, the assertion that the delay in delivering the mail will adversely affect the outcome of his pending litigation is wholly conclusory as claimant has failed to put forth any facts to support his concern.

Furthermore, the portion of the claim which is based on defendant opening legal mail outside claimant's presence does not give rise to a claim. While directives such as the one concerning privileged correspondence may establish a standard of care and violation of the standard may lead to liability if a common law or statutory duty is breached (see e.g. Sullivan v Locastro, 178 AD2d 523; Labor Law 241[6]) regulations, unlike statutes, cannot impliedly create a cause of action (see, Saladino v Perales, 172 AD2d 841; cf. Ruotolo v State of New York, 141 Misc 2d 111, affd 157 AD2d 452). Consequently, no liability may be imposed even for a clear violation of the directive as no showing has been made that a common law or statutory duty has been breached.

On balance consideration of the factors in Court of Claims Act §10(6) weigh against granting the motion and accordingly, it is denied.


July 29, 2002
Saratoga Springs, New York
HON. THOMAS J. MCNAMARA
Judge of the Court of Claims


Papers Submitted:

1. Notice of Motion dated April 5, 2002
2. Affidavit in Support of David Vega sworn to the 5th day of April, 2002 with attachments
3. Affirmation in Opposition of Kathleen M. Resnick, Esq. dated April 30, 2002
4. Unsworn Reply of David Vega dated May 9, 2002 with exhibits annexed