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
, 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,
[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
, 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
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
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
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.