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