New York State Court of Claims

New York State Court of Claims

GLOSTER v. THE STATE OF NEW YORK, #2002-015-300, Claim No. None, Motion No. M-65562


Movant permitted to file late claim for bailment of inmate property following dismissal of earlier untimely claim.

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:
Jerry Gloster, Pro Se
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Eileen E. Bryant, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
October 21, 2002
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


Movant's motion seeking late claim relief is granted. This motion followed the dismissal of a previously filed, untimely claim by decision and order of the Hon. Thomas J. McNamara dated June 5, 2002. Although the pro se movant failed to submit a proposed claim on the instant motion he attached a copy of the previously dismissed claim which the Court has chosen to treat as the proposed claim for purposes of this late claim application. The proposed claim sounds in bailment and alleges the loss of personal property over a period of time beginning with movant's transfer into the Special Housing Unit (SHU) at Great Meadow Correctional Facility on November 8, 1999 and continuing through his subsequent transfer to the SHU at Upstate Correctional Facility on November 14, 1999 and a final transfer to the general prison population at Elmira Correctional Facility on February 28, 2000. Movant filed an administrative claim on March 20, 2000 seeking $1,137.69 as the purported value of the missing or damaged property. His administrative claim was approved for payment in the amount of $127.02 on May 19, 2000. Movant rejected that offer on May 23, 2000 and appealed to the DOCS Central Office pursuant to 7 NYCRR § 1700.3 (b) (2) since the amount sought exceeded $500.00. That appeal was denied by letter dated August 2, 2000 from Senior Budget Analyst Carol T. Caban (Exhibit 3).

Although not authorized by Court of Claims Act § 10 (9) movant served a notice of intention to file a claim upon the Attorney General on August 24, 2000. A claim was thereafter filed on January 12, 2001 and served upon the Attorney General on January 18, 2001. That claim was dismissed upon a finding that the claim was not served and filed within the 120 day period for the commencement of an inmate personal property claim as measured from the exhaustion of movant's administrative remedy on August 2, 2000. The Court's dismissal of the claim was, however, without prejudice to a late claim application which is now before the Court.

Subdivision 6 of section 10 of the Court of Claims Act permits this Court, if the applicable Statute of Limitations set forth in article 2 of the CPLR has not expired, to allow the filing of a late claim upon consideration of the following factors: "whether the delay in filing the claim was excusable; whether the state had notice of the essential facts constituting the claim; whether the state had an opportunity to investigate the circumstances underlying the claim; whether the claim appears to be meritorious; whether the failure to file or serve upon the attorney general a timely claim or to serve upon the attorney general a notice of intention resulted in substantial prejudice to the state; and, whether the claimant has any other available remedy".

The motion filed on July 26, 2002 is timely in that a bailment claim arising from the alleged negligent handling of movant's personal property is governed by the three year Statute of Limitations set forth in CPLR § 214 (3).

Turning to the statutory factors, this Court has broad discretion in deciding a motion to permit the late filing of a claim (Ledet v State of New York, 207 AD2d 965), and the statutory factors are not exhaustive or one factor controlling (Matter of Gavigan v State of New York, 176 AD2d 1117). The most important factor is whether the potential claim has merit, as it would be a futile exercise to permit litigation of a clearly baseless lawsuit (Savino v State of New York, 199 AD2d 254).

The instant movant apparently believed erroneously that the service of a notice of intention upon the Attorney General afforded him additional time beyond the 120 day statutory period established in Court of Claims Act § 10 (9) to file and serve his claim. The excuse proffered amounts to ignorance of the law and this factor weighs against granting the motion (see, E.K., Matter of v State of New York, 235 AD2d 540; Sevillia v State of New York, 91 AD2d 792).

The intertwined issues of notice, opportunity to investigate and prejudice will be considered together. Although Court of Claims Act § 10 (9) neither requires nor authorizes the service of a notice of intention to file a claim as previously noted, it cannot be argued that the service of a notice of intention following the denial of his timely filed administrative appeal failed to provide the State with notice and an opportunity to investigate movant's alleged loss. Little if any prejudice can be said to flow from the delay in serving the claim under these circumstances.

As to the issue of merit, the proposed claim appears to present a potentially viable cause of action for negligent bailment. In order to establish a meritorious claim it is movant's burden to show that the proposed claim is not patently groundless, frivolous or legally defective and there is reasonable cause to believe that a valid claim exists (see, Rosenhack v State of New York, 112 Misc 2d 967; Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1). In the Court's view movant has met that burden.

As to the final factor, it does not appear that movant has any other legal remedy available under the circumstances, defense counsel's assertion that movant could accept DOCS $127.02 offer notwithstanding.

Movant is hereby directed to file a verified claim with the Chief Clerk of the Court and to serve a copy thereof upon the Attorney General either personally or by certified mail, return receipt requested as provided in Court of Claims Act § 11 (a) (i) within 30 days of service upon him of a copy of this decision and order.

October 21, 2002
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
  1. Notice of motion dated July 23, 2002;
  2. Affidavit of Jerry Gloster sworn to July 23, 2002 with exhibits;
  3. Affirmation of Eileen E. Bryant dated August 22, 2002 with exhibit;
  4. Affidavit of Jerry Gloster sworn to September 17, 2002, with exhibit.