New York State Court of Claims

New York State Court of Claims

GILL v. THE STATE OF NEW YORK, #2002-019-583, Claim No. NONE, Motion No. M-65606


Claimant's motion for permission to file late claim arising from cancellation of religious study group 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):
Cross-motion number(s):

Claimant's attorney:
Defendant's attorney:
BY: Carol A. Cocchiola, Assistant Attorney General,of counsel
Third-party defendant's attorney:

Signature date:
November 7, 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-65606, dated July 19, 2002, and filed August 5, 2002.
  2. Affidavit of Anthony G. Gill, in support of motion, sworn to July 17, 2002, with attached exhibits.
  3. Proposed Claim, sworn to May 28, 2002.
  4. Affirmation of Carol A. Cocchiola, AAG, in opposition to motion, dated September 25, 2002, and filed September 25, 2002, with attached exhibits.
  5. Affidavit of Edward H. Meiser, Jr., in opposition to motion, sworn to September 18, 2002, with attached exhibits.
The proposed claim alleges that Claimant had previously been baptized a Jehovah's Witness and was incarcerated at Elmira Correctional Facility (hereinafter "Facility") where Jehovah's Witness "religious services" were held each Wednesday evening from 7:00 p.m. through 9:30 p.m. (Proposed Claim, ¶ 4). Claimant alleges that the Facility improperly cancelled one of these scheduled services on April 17, 2002 to make room for a NAACP festival that was scheduled for the same date and time. The proposed claim is drafted in terms of ministerial negligence and violations of the New York State Constitution Article 1, §§ 3 & 12, as well as Correction Law 610.

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 [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). 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).

Here, the State concedes that the religious "meeting" described by Claimant was in fact cancelled on April 17, 2002. However, the State submits an affidavit from Facility Chaplain Edward H. Meiser, Jr. who states that the "service" referred to by Claimant was actually a Jehovah's Witnesses "Bible study group", rather than a religious service. (State's Exhibit B). Chaplain Meiser also indicates that the cancellation and/or rescheduling of this study group, together with other various religious programs were required "[t]o allow for the necessary space and staffing to hold the [NAACP] event." (State's Exhibit B, ¶ 3).

Generally, Claimant is correct that the New York State Constitution and Correction Law 610 confer certain rights upon inmates relative to religious freedom.[1] The Court of Appeals has construed Correction Law 610, however, and found that it also "[e]xpressly authorizes the reasonable curtailment of such rights if such is necessary for the 'proper discipline and management of the institution'". (Matter of Brown v McGinnis, 10 NY2d 531, 535-536; emphasis added; see also Matter of Abdullah v Smith, 115 Misc 2d 105, 108, affd 96 AD2d 742). In other words, an inmate's rights to religious freedom must be balanced against security considerations and the State's legitimate correctional goals. (Matter of Cancel v Goord, 278 AD2d 321, lv denied 96 NY2d 707; Jackson v Coughlin, 204 AD2d 939; Matter of Abdullah v Coughlin, 131 AD2d 471).

Whether the religious meeting of April 17, 2002 is described as a religious service or study group, Claimant has failed to set forth any allegation that would take the actions of the Facility outside the scope of the State's legitimate exercise of security considerations and correctional goals. Matters such as staffing are clearly related to security concerns and management of the institution which are proper curtailments to Claimant's rights under Correction Law 610.[2] In this Court's view, even assuming all the allegations to be true, from this record the Court finds that Claimant has not demonstrated that his proposed claim appears meritorious.

As to the remaining factors, Claimant's proffered excuse for his delay amounts to an estoppel argument, namely that delay by prison officials in processing his legal mail and requests for postage advances were the cause of his untimeliness. It is well-settled that defects in mailing by an inmate can result, upon proper proof, in an estoppel if the State is the cause of the delay. (Wattley v State of New York, 146 Misc 2d 968). Here, Claimant avers that on May 30, 2002, he submitted legal mail containing this claim for processing to the Facility. The Facility returned his request to him on June 7, 2002 advising that due to a negative balance in his inmate account that he would need to establish the legal necessity of such mailing. Claimant resubmitted his request on that same date.[3] On June 10, 2002, Claimant was transferred to Mohawk Correctional Facility which delayed his receipt of the Facility's second denial dated June 19, 2002 until June 28, 2002.

In this Court's view, Claimant has failed to set forth sufficient proof warranting the application of estoppel in this instance. First, despite Claimant's assertions that he submitted proper legal authority to Facility personnel substantiating his need to meet the deadlines of CCA 10 and 11 he submits no proof that he in fact did so. In any event, the State has submitted DOCS Directive 4421 and 7 NYCRR 721 (a) (3) (iv) and (vi) which set forth the procedures for the handling of outgoing legal mail when an inmate does not have a sufficient balance remaining for his weekly free postage. It appears that Facility personnel followed these procedures. Most importantly, however, Claimant has failed to explain gaps in time most notably the time between the date of this incident, April 17, 2002, until his first request nearly 6 weeks later on May 30, 2002. This sequence of events is a good demonstration of the wisdom behind the adage "leave time for trouble". (Siegel, NY Prac § 33, at 40 [3d ed]). It was incumbent on Claimant to allow enough time for trouble for the processing of his legal mail knowing the intricacies of the prison mail system and likely aware of his low or negative account balance. The State cannot be held accountable for following its own rules and regulations in processing an inmate's legal mail and to rule otherwise would impose an unreasonable burden on prison officials to constantly monitor the urgency of requests in relation to legal time periods. Consequently, the Court finds that Claimant has failed to submit sufficient proof warranting the application of estoppel against the State in this instance. Accordingly, the Court weighs this factor against Claimant.

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. Based upon the State's concession, the Court finds these three factors weigh in Claimant's favor.

Finally, Claimant asserts he has no alternate remedy. To the contrary, the State argues that Claimant could have pursued this matter in either federal court or in supreme court by way of an Article 78 proceeding. Although there is no prerequisite that a claimant must exhaust his administrative remedies prior to commencing suit in the Court of Claims in any action other than an inmate bailment claim,[4] that does not exclude consideration of such administrative remedies in relation to this factor in this context. As such, this factor weighs against Claimant.

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

In view of the foregoing, IT IS ORDERED that Claimant's motion for permission to file a late claim, Motion No. M-65606, is DENIED.

November 7, 2002
Binghamton, New York

Judge of the Court of Claims

[1]Correction Law 610 subdivisions 1 and 3 provide that:

[a]ll persons who may have been or may hereafter be committed to or taken charge of by any of the institutions mentioned in this section, are hereby declared to be and entitled to the free exercise and enjoyment of religious profession and worship, without discrimination or preference.
[s]uch services to be held and such advice and ministration to be given within the buildings or grounds, whenever such manner and at such hours as will be in harmony, as aforesaid, with the discipline and the rules and regulations of the institution and secure to such inmates free exercise of their religious beliefs in accordance with the provisions of this section....
[2]DOCS Directive 4202 also states that attendance at religious worship services and programs are allowed "[t]o the extent possible and consistent with the safety and security of the facility...." (Exhibit 2 to State's Exhibit B).
[3]The State's memo actually refers to 6 legal mail parcels. At best, only 2 of those parcels could relate to this matter, conceivably a package to the Clerk of the Court and one to the Attorney General's office.
[4](CCA 10 [9]; Fullwood v State of New York, Ct Cl, November 14, 2001, Corbett, Jr., J., Claim No. 103204, Motion No. M-63915 [UID No. 2001-005-541]). Unreported decisions from the Court of Claims are available via the Internet at