Motion for Permission to File a Late Claim, sworn to February 20, 2002, and
filed March 4, 2002.
"Notice of intention to file Claim", of Richard Dippolito, sworn to February
Proposed Claim, sworn to February 20, 2002, with attachments.
Affirmation in Opposition to Motion Seeking Leave to File a Late Claim, of
Joseph F. Romani, AAG, dated March 26, 2002, and filed March 28, 2002.
Affidavit of Robert L. DelGiorno, in opposition to late filing motion, sworn to
March 26, 2002, with attachments.
"Affidavit in rebuttal of states [sic] opposition to motion seeking
leave to file a late claim" of Richard Dippolito, sworn to April 17, 2002.
"Notice of Motion for Permission to proceed as a poor person", of Richard
Dippolito, sworn to February 20, 2002, and filed March 4, 2002.
Affirmation in Opposition to Claimant's Application for Permission to Proceed
as Poor Person, of Joseph F. Romani, AAG, dated March 26, 2002, and filed March
"Affidavit in rebuttal of states [sic] opposition to Claimant's
application to proceed as a poor Person CPLR 1101", of Richard Dippolito, sworn
to April 15, 2002.
1. Motion For Permission to Late File
The proposed claim indicates that Claimant, currently incarcerated in the
Broome County Correctional Facility, was arrested by Investigator Robert
DelGiorno of the New York State Police on August 17, 2001. Claimant asserts
that at the time of his arrest his personal property was confiscated with only a
portion of the items being seized as contraband. It is the remaining items of
Claimant's personal property that are the subject of this proposed claim. More
specifically, Claimant contends that Investigator DelGiorno gave his personal
property that was deemed not to be contraband to two individuals named Laurie
Cross and Joe Judge without his consent and seeks damages based upon the
theories of conversion and unjust enrichment.
As a threshold issue, the Court notes that it has jurisdiction to review and
determine this motion since it was filed within three years from the date of
accrual. (CPLR 214; CCA 10 ). Moreover, the Court of Claims has
jurisdiction over conversion and unjust enrichment causes of action. (Brewer
v State of New York, 176 Misc 2d 337, 343).
Turning to the substance of the motion, the factors the Court must consider in
determining a properly framed CCA 10 (6) motion are whether:
1. the delay in filing the claim was excusable,
2. the State had notice of the essential facts constituting the claim,
3. the State had an opportunity to investigate the circumstances underlying the
4. the claim appears to be meritorious,
5. 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
6. there is any other available remedy.
The Court will first examine the factor that has been characterized as the most
decisive component in determining a motion under CCA 10 (6), namely whether the
proposed claim appears meritorious, since it would be futile to permit a
meritless claim to proceed. (Matter of Santana v New York State Thruway
Auth., 92 Misc 2d 1). In order to establish a meritorious claim, Claimant
must establish that the proposed claim is not patently groundless, frivolous, or
legally defective and that there is reasonable cause to believe that a valid
claim exists. (Id. at 11). In order to make this determination the
Court may examine the proposed causes of action, as well as all submitted papers
and exhibits. (Id.). Although a late filing applicant need not overcome
all legal objections relative to the merit of the proposed claim, an applicant
must establish the probable existence of evidence necessary to support the
fundamental elements of the proposed claim. (Id. at 11-12).
With respect to the conversion claim, a successful litigant must establish an
"[u]nauthorized exercise of dominion or control over property by one who is not
the owner of the property which interferes with and is in defiance of a superior
possessory right of another in the property." (Meese v Miller, 79 AD2d
237, 242). Here, Claimant avers that he never gave consent to Investigator
DelGiorno to transfer his property to Ms. Cross and Mr. Judge. The State does
not deny that Investigator DelGiorno transferred this property to these
individuals, but rather submits an affidavit from Investigator DelGiorno
swearing that he did so at Claimant's direction. (Affidavit of Robert L.
DelGiorno, ¶ ¶ 14 & 16). The State has not indicated whether the
alleged consent was obtained in writing, and no such supporting proof has been
submitted. Additionally, the State submits the alternative argument that
Claimant has failed to proffer sufficient proof establishing he was the rightful
owner of this property in the first instance as required for a conversion
action. This alternate position appears to be inconsistent with the State's
position that it transferred the property at Claimant's direction which would
have only been appropriate if the State accepted the Claimant as owner of the
property. As such, in light of these competing versions of events, the Court is
presented with a credibility issue. Although, the Court is entitled to consider
credibility on a late filing motion, the Court has not been presented with
sufficient information to ascertain the credibility of either deponent with any
degree of certainty at this stage. (Matter of Galvin v State of New
York, 176 AD2d 1185). Thus, in this Court's view, there appears to be merit
to the claim within the meaning of CCA 10 (6) despite the presence of a dispute
regarding a sharp but undeveloped factual issue, namely Claimant's ownership of
these items and whether he consented to the transfer of property. (Marcus v
State of New York, 172 AD2d 724, 725). Consequently, the Court finds that
Claimant has established that there is reasonable cause to believe a cause of
action based upon conversion exists.
With respect to the merit of that portion of the proposed claim sounding in
unjust enrichment, it is well-settled that in order "[t]o state a cause of
action for unjust enrichment, a [litigant] must allege that it conferred a
benefit upon the defendant, and that the defendant will obtain such benefit
without adequately compensating plaintiff therefor [citations omitted]."
(Smith v Chase Manhattan Bank, USA, N.A., __ AD2d __, NY Slip Op
03015 [April 15, 2002]). In this Court's view, even assuming all the
allegations to be true, from this record it appears that such a cause of action
is not proper against the State, but rather may be more appropriate against the
recipients of this property in another venue. (Metropolitan Elec. Mfg. Co. v
Herbert Constr. Co., 183 AD2d 758, 759). In sum, this Court finds that
Claimant has established a showing of merit with respect to the proposed cause
of action for conversion, but has not done so relative to the proposed unjust
enrichment cause of action.
As to the remaining factors, Claimant's proffered excuse for his delay is that
he was not aware that his property had been given away until January 2002 when
he reviewed police reports. (Motion for Permission to File a Late Claim;
Proposed Claim, ¶ 6). Claimant's lack of knowledge regarding the transfer
of said property is an acceptable excuse. (Community Nat. Bank & Trust
Co. of N.Y. v State of New York, 68 AD2d 999). As such, this factor weighs
in Claimant's favor.
Although the next three factors of notice, opportunity and prejudice are
typically discussed together, the State concedes these three factors and, as
such, the Court need not discuss these factors at length. Based upon the
State's concession, the Court finds these three factors weigh in Claimant's
Finally, as previously indicated, it appears Claimant may have an alternate
remedy against the recipients of the property. Thus, this factor weighs against
Accordingly, upon reviewing and balancing all of the factors enumerated in CCA
10 (6), the Court finds that in relation to the proposed conversion cause of
action, that five of the six statutory factors, including the all important
issue of merit, weigh in favor of Claimant's motion for permission to late file;
whereas in connection with the proposed unjust enrichment cause of action that
the all important issue of merit weighs against Claimant, thereby warranting
denial of that portion of Claimant's motion for permission to late file.
2. Motion for Poor Person Status
Insofar as this motion also seeks reduction for the filing fee applicable in
this Court pursuant to CPLR 1101 (f), such application is premature. Claimant
should make the application anew when he files the now permitted claim with the
Court. Accordingly, the motion for poor person status is denied without
In view of the foregoing, IT IS ORDERED that Claimant's motion for permission
to file a late claim, Motion No. M-64815, is GRANTED IN PART and DENIED IN PART
in accordance with the foregoing. Claimant shall file a claim in the Office of
the Clerk and serve a copy of the claim upon the attorney general within sixty
(60) days from the date of filing of this Decision and Order with the Clerk of
this Court. Furthermore, the claim should be revised to reflect the terms of
this Decision and Order. The service and filing of the claim shall be in
conformity with all applicable statutes and rules of the Court with particular
reference to CCA § § 10, 11 and 11-a; and
IT IS FURTHER ORDERED that Claimant's motion for poor person relief is DENIED