4-7 Filed Papers; Claim, Verified Answer, Decision, Judgment.
After carefully reviewing the papers submitted, and the applicable law, the
motion is decided as follows:
Granted. Claimant, an inmate proceeding pro se, recites a history in his
affidavit in support, concerning his attempts to appeal a judgment of this Court
entered December 4, 2001. He states that first he filed a motion for permission
to appeal with the Court of Appeals on or about December 27, 2001. That Court
returned his papers to him on December 28, 2001, referring him to Court of
Claims Act §24 , and indicating that appeals from the Court of Claims are
taken to the Appellate Division.
Thereafter, Claimant filed some type of document with the Appellate Division,
Second Department, who returned the papers to him by letter dated January 23,
2001 (sic), advising him that "[a]n appeal in a civil case is taken by
first filing a notice of appeal...in the Court of Claims with proof of service
on your adversary." Nowhere does he indicate that he served a Notice of
Appeal upon his adversary, the State of New York. The present motion was filed
in the Clerk's Office on March 6, 2002: three months after the judgment herein
In a letter dated March 18, 2002 the Attorney General's office indicates that
the State of New York takes no position with respect to Claimant's
As noted in Court of Claims Act § 24, the provisions of the Civil
Practice Law and Rules governing appeals from Supreme Court apply to appeals
from judgments in the Court of Claims. In the Court of Claims, "...appeals must
be taken within thirty days after the service of the... judgment with notice of
entry or the service by the clerk of a certified copy of the...judgment, by
serving upon...the attorney-general, and upon the clerk, in like manner as in
the supreme court, a written notice to the effect that the appellant appeals
from the...judgment...." Court of Claims Act §25, § 5513(a) Civil
Practice Law and Rules.
Extensions of time within which to take an appeal are granted only under
limited circumstances. §5514 Civil Practice Law and Rules. The only
circumstances are (1) when a party, within the thirty day time period,
mistakenly proceeds to appeal by a different method, i.e.: as of right
instead of with permission, [§§ 5514(a) and 5520(b) Civil Practice
Law and Rules]; (2) when a party's attorney becomes disabled [§ 5514(b)
Civil Practice Law and Rules; (3) when an event [see, e.g. §§
1015 through 1020 Civil Practice Law and Rules] requiring substitution of
parties occurs [§ 1022 Civil Practice Law and Rules]; or (4) when a party
has timely filed or served a notice of appeal but has failed to do the
complementary act of serving or filing, respectively. [§ 5520(a) Civil
Practice Law and Rules].
Applications to extend the time within which to appeal, based upon the narrowly
described "omission" of §5520(a) Civil Practice Law and Rules, may be
heard by the court of original instance. As a predicate, however, the appellant
must have "...either serve[d] or file[d] a timely notice of appeal or notice of
motion for permission to appeal....", and then "neglect[ed] through mistake or
excusable neglect to do another required act with the time limited...."
[§ 5520(a) Civil Practice Law and Rules], namely the corresponding act of
filing or serving.
Thus, in Joyner v State of New York, 133 Misc 2d 86 (NY Ct Cl 1986), the
Court of Claims granted the pro se inmate claimant's application to extend the
time within which to file and serve a "formal" Notice of Appeal on two grounds.
First, the Court said it would treat Claimant's motion for an extension of time
to appeal as a timely filed Notice of Appeal "in the interest of justice", in
that the papers were mailed on the day the time to appeal expired, the papers
were duly served on the Attorney General, and the mailing of the papers had been
the Claimant's first opportunity to take any action since he had been keeplocked
"...during some or all of the period within which he must take his appeal."
Joyner v State of New York, supra, at 87. Second, the Court said
Claimant's arguments concerning § 5514(b) Civil Practice Law and Rules, the
"disability of an attorney" provision, were "convincing." Id, at 88.
Since claimant had been acting as his own attorney, he had "become disabled from
doing so [CPLR § 321(c)] because he was allegedly in keeplock status (and
not merely imprisoned) and as such had no access to the facility's law
library, other inmate assistance and/or to a notary public." Id.
(emphasis in original).
In the case at bar, the Claimant has been attempting to commence the appeal
process since well within the thirty (30) day period, but has taken some
missteps not entirely of his own making. The State has not been prejudiced,
indeed, the State takes no position with respect to
this application. Accordingly, Claimant's motion is granted to the extent that
he has leave to,
and is hereby directed to, serve a Notice of Appeal on the Clerk of the Court of
with proof of service of the Notice of Appeal upon the Attorney General within
thirty (30) days
after service of the order herein. The Clerk is directed to serve this order
pursuant to section 25 of