New York State Court of Claims

New York State Court of Claims

WILCOX v. THE STATE OF NEW YORK, #2002-019-561, Claim No. 105403, Motion Nos. M-65250, M-65394


State's motion to dismiss claim is granted due to failure to comply with CCA 10 and 11; Claimant's motion for permission to late file is denied.

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):
M-65250, M-65394
Cross-motion number(s):

Claimant's attorney:
Defendant's attorney:
BY: Joseph F. Romani, Assistant Attorney General,of counsel
Third-party defendant's attorney:

Signature date:
August 16, 2002

Official citation:

Appellate results:

See also (multicaptioned case)


The State of New York (hereinafter "State") moves for an order of dismissal (Motion No. M-65250) based upon Claimant's failure to serve a claim pursuant to Court of Claims Act (hereinafter "CCA") 10 and 11. Claimant, a pro se inmate, moves for an order granting permission to file a late claim (Motion No. M-65394) pursuant to CCA 10 (6).[1]

The Court has considered the following papers in connection with these motions:
1. Claim, filed December 27, 2001.
2. Notice of Motion No. M-65250, dated May 20, 2002, and filed May 22, 2002.
3. Affirmation of Joseph F. Romani, AAG, in support of Motion No. M-65250, dated May 20, 2002.
4. Affidavit of Carol A. McKay, in support of Motion No. M-65250, sworn to May 10, 2002, with attached exhibit.
5. Notice of Motion No. M-65394, dated June 8, 2002, and filed June 24, 2002.
6. Affirmation of Eric Wilcox, in support of Motion No. M-65394 and in opposition to Motion No. M-65250, dated June 8, 2002.
  1. Affirmation of Joseph F. Romani, AAG, in opposition to Motion No. M-65394, dated July 24, 2002, and filed July 26, 2002, with attached exhibits.
This Claim alleges a bailment cause of action arising from Claimant's transfer from Ontario County Jail to Elmira Correctional Facility on May 11, 2001. The Claim asserts that the clothes he was wearing upon entry at Elmira Correctional Facility were either lost, destroyed, stolen or donated without his consent. This Claim was filed with the Clerk of the Court on December 27, 2001. There is no affidavit of service attached to the Claim or contained in the Court's file.

I. State's Motion to Dismiss (Motion No. M-65250)

The State moves for dismissal due to Claimant's failure to serve a claim pursuant to CCA 10 and 11.[2] The State submits an affidavit from Carol A. McKay, a senior clerk in the Attorney General's office who avers that: "[b]ased upon my review of the files in the Office of the Attorney General of the State of New York, Albany Claims Bureau, I find no record that the Claim in this matter was ever served on the Attorney General." (Affidavit of Carol A. McKay, ¶ 4).

In opposition, Claimant argues that he did mail his Claim to the Attorney General's office, although he concedes that he did so using regular mail rather than certified mail, return receipt requested. Claimant further insists that the State must have received his mailing since the State has since communicated with him at his new address, information that was only available in that correspondence. Despite Ms. McKay's affidavit to the contrary, this Court is willing to accept Claimant's argument that the State actually received a copy of this Claim. That having been said, however, actual receipt does not eliminate the requirement that service of a claim be achieved by one of the prescribed methods of service as set forth in CCA 11, namely by personal service or certified mail, return receipt requested. It is a fundamental principle of practice in the Court of Claims that the filing and service requirements contained in the CCA are jurisdictional in nature and must be strictly construed. (Finnerty v New York State Thruway Auth., 75 NY2d 721, 722-723). The Court is without discretion to waive these requirements. Consequently, this Claim must be dismissed due to Claimant's failure to comply with CCA 10 and 11.

II. Claimant's Motion for Permission to Late File (Motion No. M-65394)

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]). The Court also notes that Claimant's motion papers do not specifically address each of the statutory factors set forth in CCA 10 (6). As such, the Court will glean as much information as possible from Claimant's now dismissed claim which it is treating as the proposed claim. (Syndicate Bldg. Corp. v City Univ. of N. Y., 151 Misc 2d 492, 495 n 2).

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 Claimant's need to establish his compliance with CCA 10 (9) which is applicable to bailment claims. 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, Claimant checked the box on his Claim form which states: "[t]his is a claim by a correctional facility inmate to recover damages for injury to or loss of personal property and it is served and filed within 120 days of the exhaustion of claimant's administrative remedies." (Claim, ¶ 5). This Claim itself also makes a vague reference to the denial of a claim, presumably the initial grievance. Assuming, arguendo, that Claimant properly pursued an initial review that was denied, Claimant's moving papers do not establish that he pursued an appeal of that initial review which was available to him through DOCS. (7 NYCRR 1700.3 [b]). Consequently, Claimant has not demonstrated that he has exhausted the available administrative remedies pursuant to CCA 10 (9) and, as such, has failed to demonstrate the appearance of merit of his proposed claim. (Gomez v State of New York, Ct Cl., August 16, 2000, McNamara, J., Claim No. None, Motion No. M-61701).

With respect to the remaining factors, Claimant argues that his delay was caused by his limited access to the law library. It is well-settled that neither ignorance of the law nor 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). This factor weighs against Claimant.

Neither party addresses the remaining factors of notice, opportunity to investigate, the substantial prejudice, if any, to the State and the availability of any another remedy. Inasmuch as the burden lies with Claimant on this motion, without any proof on these issues the Court finds these factors weigh against Claimant.

Accordingly, upon reviewing and balancing all of the factors enumerated in CCA 10 (6), the Court finds that all of the six statutory factors weigh against Claimant's motion for permission to file a late claim.

Consequently, for the reasons stated above, it is ORDERED that the State's motion to dismiss, Motion No. M-65250, is GRANTED and Claim No. 105403 is DISMISSED; and.

IT IS FURTHER ORDERED that Claimant's motion for permission to file a late claim, Motion No. M-65394, is DENIED.

August 16, 2002
Binghamton, New York

Judge of the Court of Claims

[1]Claimant's motion papers also contain his opposition to the State's motion.
[2]Service of a notice of intention is not available in connection with bailment claims under CCA 10 (9). (Cepeda v State of New York, Ct Cl, October 22, 2001, Midey, Jr. J, Claim No. 104717, Motion No. M-64015).