New York State Court of Claims

New York State Court of Claims

ACOSTA v. THE STATE OF NEW YORK, #2002-019-543, Claim No. NONE, Motion No. M-65080


Claimant's motion for permission to file a late claim for loss of personal property denied without prejudice due, in part, to inconsistency between personal property that was the subject of grievance procedure as compared to items listed on proposed 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:
Defendant's attorney:
BY: Joseph F. Romani, Assistant Attorney Generalof counsel
Third-party defendant's attorney:

Signature date:
July 2, 2002

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant, an inmate appearing pro se, moves for permission to file a late claim pursuant to Court of Claims Act (hereinafter "CCA") 10 (6). The State of New York (hereinafter "State")

opposes the motion.

The Court has considered the following papers in connection with this motion:
  1. Notice of Motion No. M-65080, sworn to April 11, 2002, and filed April 23, 2002.
  2. Affidavit of Oscar Acosta, in support of motion, sworn to April 11, 2002.
  3. Proposed Claim, sworn to April 11, 2002.
  4. Affirmation of Joseph F. Romani, AAG, in opposition to motion, dated May 20, 2002, and filed May 22, 2002, with attached exhibit.
  5. Reply Affidavit of Oscar Acosta, in support of motion, sworn to June 6, 2002, and filed June 10, 2002, with attachments.

The proposed claim alleges that the State was negligent in losing two bags of Claimant's personal property during his transfer from Southport Correctional Facility to Wende Correctional Facility on February 22, 2001. Claimant served a Notice of Intention upon the Attorney General's office on July 13, 2001.[1] No claim was ever filed or served. Claimant moves for permission to file a late claim pursuant to CCA 10 (6).

As a threshold matter, the Court notes that it has the jurisdiction to review and determine this matter, since this motion was filed within the time period prescribed by Article 2 of the CPLR. (CCA 10 [6]).

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 claim,

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). An additional component in this case is for Claimant to establish his compliance with CCA 10 (9) which is applicable to bailment claims.[2] CCA 10 (9) mandates that:
[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.

The Department of Correctional Services (hereinafter "DOCS") has established a two-tier system for handling personal property claims consisting of an initial review and an appeal. (7 NYCRR 1700.3). Here, the proposed claim alleges Claimant's compliance with this two-step procedure. In fact, Claimant submits a copy of his Inmate Claim Form, the initial adverse determination, as well as the denial of his appeal on September 14, 2001. At first glance these documents appear to establish Claimant's exhaustion of the administrative remedy. However, upon closer review the Court notes that the items of personal property listed on Claimant's Inmate Claim Form do not correspond to those items of personal property listed on this proposed claim, with the exception of two items. The only two items that are described in both the Inmate Claim Form and the proposed claim are a pair of sneakers valued at $50.00 and a pair of eyeglasses valued at $15.00. With respect to the remaining items, the discrepancies include, but are not limited to, the following: a sweatshirt, is listed at different values ($25 versus $20); "10 magazines for $50" on the Inmate Claim Form later becomes "12 magazines for $60" in the proposed claim; a radio at $30, four personal sheets for $25, five tapes for $50, and 25 pictures for $25 are totally omitted from the proposed claim. In sum, it was Claimant's burden of establishing the exhaustion of the two step process with respect to each of the items listed in his proposed claim. This he has not done. In sum, the only two items for which the Court can conclude with certainty that Claimant exhausted his administrative remedy are the sneakers and eyeglasses. With respect to all the other items listed in the proposed claim, this Court cannot ascertain whether those items were the subject of Claimant's grievance and subsequent appeal.

An additional concern on the subject of merit, however, is the reason Claimant's Inmate Grievance was denied in the first instance. In his proposed claim, Claimant indicates that on May 13, 2001 he received 1 of his 3 bags. The notations on the denial of Claimant's Inmate Claim Form indicate that Claimant also received bags on April 23, 2001 and May 7, 2001, as well as the statement that this claim was a "duplicate claim - Claim #01-16 disapproved on 7/09/01." In other words, it is unclear whether this accounts for Claimant's two allegedly missing bags or how a previously filed claim may be involved. As such, even with respect to the sneakers and eyeglasses, Claimant has failed to establish that the proposed claim appears meritorious.

With respect to the remaining factors, Claimant indicates that his excuse for the delay was the Facility's refusal to grant him access to the law library. Although Claimant submits a copy of Inmate Grievance Complaints regarding the apparent validity of these complaints, it is well-settled that neither ignorance of the law or incarceration is a valid excuse. (Innis v State of New York, 92 AD2d 606, affd 60 NY2d 654; Hall v State of New York, 85 AD2d 835). With respect to the other four factors of notice, opportunity, prejudice, and alternate remedy, the State concedes that each of these factors weigh in Claimant's favor.

Accordingly, upon reviewing and balancing all of the factors enumerated in CCA 10 (6), the Court finds that two of the six statutory factors, including the all-important issue of merit, weigh against Claimant's motion for permission to late file. Consequently, it is ORDERED that Claimant's motion for permission to file a late claim, Motion No. M-65080, is DENIED without prejudice.

July 2, 2002
Binghamton, New York

Judge of the Court of Claims

[1]The service of a notice of intention relative to a bailment claim is of no legal consequence since the enactment of CCA 10 (9). (Cepeda v State of New York, Ct Cl, October 22, 2001, Midey, Jr., J, Claim No. 104717, Motion No. M-64015).
[2]CCA 10 (9) became effective on December 7, 1999 (L 1999, c.412) and is thus applicable to this case.