New York State Court of Claims

New York State Court of Claims

EDWARDS v. THE STATE OF NEW YORK, #2002-013-012, , Motion No. M-63697


Inmate claimant's motion for permission to late file a bailment claim is granted. The proposed claim does not have to affirmatively plead that administrative remedies have been exhausted and information about whether this inmate exhausted such remedies have been provided to the Court.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):

Motion number(s):
Cross-motion number(s):

Claimant's attorney:
Defendant's attorney:
Attorney General of the State of New York
BY: JAMES L. GELORMINI, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
March 21, 2002

Official citation:

Appellate results:

See also (multicaptioned case)


On February 20, 2002, the following papers were read on Claimant's motion for permission to file a late claim:

1. Notice of Motion of Matthew Edwards, Pro Se

2. Affirmation of James L. Gelormini, Esq.

3. Filed Papers: Decision and Order filed December 13, 2001

Claimant, while an inmate at Orleans Correctional Facility, moved for permission to late file a claim which would allege that, as a result of negligence on the part of the State, some of his personal property was damaged or destroyed by other inmates while he was away from his housing unit. When I initially considered this motion (see, Decision and Order, Motion No. M-63697, filed December 13, 2001), I determined that if one were to consider only the six factors listed in Court of Claims Act §10(6), leave to file should be granted. The statute directs, however, that "other factors" also be considered, and because this is a claim for personal property loss brought by a prison inmate, there is an additional factor that must be considered.

Court of Claims Act §10(9), which became effective December 7, 1999 (L 1999, ch 412) provides as follows:

A claim of any inmate in the custody of the department of correctional services for recovery of damages for injury to or loss of personal property may not be filed unless and until the inmate has exhausted the personal property claims administrative remedy, established for inmates by the department. Such claim must be filed and served within one hundred twenty days after the date on which the inmate has exhausted such remedy.

Consequently, I had to determine (1) if the proposed claim was deficient on its face because it did not allege compliance with this requirement, and (2) even if compliance does not have to be pled, whether claimants who seek permission to late file such a claim must inform the Court in their supporting papers that this statutory requirement has been met.

Addressing the first question, I concluded that exhaustion of administrative remedies does not have to be pled by the inmate claimant, just as there is no such pleading requirement placed on petitioners in article 78 proceedings, although they too must first exhaust the administrative remedies available to them before seeking judicial intervention (see, Matter of Waite v Coombe, 247 AD2d 663; Matter of Warwick v Henderson, 117 AD2d 1001; Matter of Hilton v Dalsheim, 81 AD2d 887). As to the second question, however, I determined that such information was necessary and must be provided when an inmate seeks the Court's permission to late file such a claim (accord, Spirles v State of New York, Ct Cl, May 29, 2001 [Motion No. M-63241 - MacLaw No. 2001-011-554], McNamara, J.[1] [claimant seeking to late file a claim must make "a proper showing that the administrative remedy has been exhausted"]). Without such information, the Court cannot determine if the proposed claim has sufficient apparent merit -- specifically, whether "there is reasonable cause to believe that a valid cause of action exists" (Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1) -- and in truth, cannot know if the proposed claim is actually untimely (see, Delano v State of New York, Ct Cl, June 14, 2001 [Motion No. M-62359 - MacLaw No. 2001-027-571], Waldon, J. [motion for permission to late file denied as premature because exhaustion had not yet occurred]). Because the relevant information was not provided in the original motion papers in the instant motion, I granted an adjournment to allow both parties to make further submissions.

Claimant has failed to make any additional submission. Defendant, in its submission, urges reconsideration of my earlier holding, that exhaustion of administrative remedies does not have to be pled in these cases.[2] Counsel for Defendant argues that there is a distinction between CPLR requirements and those fixed by the Court of Claims Act, and cites two recent decisions in which requirements for bringing actions under the Court of Claims Act have been interpreted more strictly than comparable requirements imposed by the CPLR in other litigation. Both of these decisions, and many others, rely on the position articulated by the Court of Appeals in Dreger v New York State Thruway Auth. (81 NY2d 721, 724): "[b]ecause suits against the State are allowed only by the State's waiver of sovereign immunity and in derogation of the common law, statutory requirements conditioning suit must be strictly construed."

Examples of this principle being applied are provided by the decisions cited by Defendant. A failure to comply with the requirement that a pleading be verified is deemed waived unless the party receiving an unverified, or improperly verified, pleading elects to treat it as a nullity and gives the party that served the pleading timely notices that it is doing so (CPLR 3022). Pursuant to Court of Claims Act §11(b): "The claim and notice of intention to file a claim shall be verified in the same manner as a complaint in an action in the supreme court." In Martin v State of New York (185 Misc 2d 799), the claim was not verified. Defendant did not take advantage of the statutory remedy, however, but merely raised the lack of verification as an affirmative defense in its answer. Despite the Defendant's failure to comply with the requirements of CPLR 3022, the claim was dismissed on the ground that the requirement of verification in the Court of Claims Act is a "statutory imperative" and, consequently, the lack of verification is a jurisdictional defect.

Another example is provided in statements in Patel v Desai (_____ AD2d _____; 734 NYS2d 445), which in turn relies on an earlier decision, Lichtenstein v State of New York (93 NY2d 911). In Lichtenstein, a claimant failed to comply with the express requirement of Court of Claims Act §10(2) that: a wrongful death action "shall be filed and served upon the attorney general within ninety days after the appointment of such executor or administrator," because she had commenced the Court of Claims action before receiving her letters of administration. The Court of Appeals affirmed dismissal of that action because she "had not met the literal requirements of Court of Claims Act §11" and thus had not properly commenced the action.

These decisions, and many others which are ably summarized in Martin v State of New York (185 Misc 2d 799, supra), stand for the undisputed proposition that practice requirements that are expressly set forth in the Court of Claims Act are to be strictly construed, and compliance with their literal directives will be required, even where the CPLR practice would permit less concrete application of similar provisions. On the other hand, one cannot strictly construe language that is not present in a statute.

To follow to the letter the "literal requirements" or "statutory imperatives" of Section 10(9), the Court would be required to dismiss a claim if the inmate claimant had failed to exhaust administrative remedies, or commenced the action prior to such exhaustion, or commenced the action more than 120 days afterwards. But -- in contrast to the express language requiring verification or providing that an administrator be appointed before a wrongful death action is commenced -- there is no language in Section 10(9) which expressly, or even implicitly, requires that compliance with that subdivision be affirmatively pled by a claimant. There is such language in Section 11(c), which requires that a defendant raise "with particularity" any defense based on improper service or untimeliness in its answer or in a pre-answer motion. This, I believe, demonstrates that when the Legislature wishes to impose a pleading requirement, it can do so with ease and clarity.

Nor is there any logical reason to impose such a pleading requirement. As with the governmental bodies that are respondents in article 78 proceedings, the State and other governmental entities that are defendants in Court of Claims actions have complete and easily accessible knowledge of whether claimants have exhausted their administrative remedies. If there has been no exhaustion, or if there is any question about whether the requirement has been met, the matter can easily and properly be raised by Defendant, either in its answer or by a pre-answer motion (see, Matter of Warwick v Henderson, 117 AD2d 1001, supra).

In the instant case, Defendant's submission demonstrates the ease with which it can consult the relevant records, and inform the Court that Claimant did, in fact, file an administrative claim and exhausted that administrative remedy. The date of exhaustion is not given, but I will assume, in the absence of contrary information, that it was more than 120 days before the instant motion was commenced and, thus, permission to late file is necessary.

For the reasons set forth above and those discussed in my earlier decision and order, Claimant's motion is granted. He is directed to file and serve a claim identical to the proposed claim submitted in support of this motion, and to do so in conformity with the requirements of Court of Claims Act §10 and §11, within 60 days after this order is filed.

March 21, 2002
Rochester, New York

Judge of the Court of Claims

  1. [1]This and other Court of Claims decisions, may be found on the Court of Claims website at
  2. [2]Defendant also contends that it is not necessary to reach the question of whether there is such a pleading requirement, but I disagree. If compliance with §10(9) must be pled, then the proposed claim here would be deficient on its face. While such deficiency might not require that the motion be denied, the Court has to, at the least, direct Claimant to make the necessary change before formally filing his claim.