New York State Court of Claims

New York State Court of Claims

SILVERA v. THE STATE OF NEW YORK, #2002-030-507, Claim No. 100838, Motion No. M-64808


Motion for extension of time to file a Notice of Appeal and to proceed as a poor person granted.

Claimant to serve Notice of Appeal and file with clerk within thirty (30) days of service of within

order. Clerk to furnish copy of transcript without charge

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:
Third-party defendant's attorney:

Signature date:
March 25, 2002
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers numbered 1 through 7 were read on Claimant's motion for an extension of time to file a notice of appeal and to proceed on appeal as a poor person:
1,2 Notice of Motion, Affidavit in Support and accompanying exhibits.
  1. Letter from Assistant Attorney General dated March 18, 2002.
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 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 was entered.

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 application.

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 Claims together

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

the Court of Claims Act.

Finally, although the Court prefers that a motion to appeal as a poor person be brought in

the proper appellate division, the Court, under these unique circumstances directs the Clerk of the

Court of Claims to furnish a copy of the transcript to the claimant without charge.

March 25, 2002
White Plains, New York

Judge of the Court of Claims