New York State Court of Claims

New York State Court of Claims

RIVERA v. THE STATE OF NEW YORK, #2002-031-037, , Motion No. M-64405


Claimant's motion for permission to file a late claim for lost personal property denied as Claimant failed to exhaust his administrative remedies as required by Court of Claims Act § 10(9).

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:
New York State Attorney General
BY: REYNOLDS E. HAHN, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
September 9, 2002

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers, numbered 1 to 5, were read on motion by Claimant for an order permitting Claimant to file a late claim:
1) Notice of Motion, dated November 25, 2001;
2) Statement of Santiago Rivera, dated November 25, 2001 and annexed exhibits;
3) January 11, 2002 letter of Reynolds E. Hahn, Esq.;

4) Correspondence from Claimant, received April 26, 2002;
5) Affirmation of Reynolds E. Hahn, Esq., affirmed May 1, 2002.
Upon the foregoing papers, the motion is denied. Claimant, Santiago Rivera, has moved pursuant to Court of Claims Act ("CCA") § 10(6) for an order granting him leave to file a late Claim, alleging loss of unspecified personal property. According to Claimant, the claim accrued between November 19, 2000 and December 2, 2000. Claimant served a notice of intention to file a claim upon the office of the Attorney General by certified mail, return receipt requested, on December 28, 2000. Claimant served the Claim upon the Office of the Attorney General by certified mail, return receipt requested, on November 25, 2001.

By interim decision and order filed April 11, 2002, I adjourned this matter to give each party an opportunity to submit additional information concerning the issue of whether or not Claimant had exhausted his administrative remedies as required by § 10(9) of the CCA. As I indicated at that time, a claim for lost property does not have merit unless the requirements of CCA § 10(9) are met and a late claim application should not be granted unless merit has been demonstrated. Claimant's subsequent submission does not address the issue of whether or not he exhausted his administrative remedies. Defendant's submission indicates that the Claimant did not exhaust his administrative remedies prior to bringing this motion.

Subdivision 6 of §10 of the CCA enumerates six factors to be weighed in connection with a late claim motion: (1) whether the delay was excusable; (2) whether Claimant has any other remedy; (3) whether Defendant had notice of the essential facts constituting the claim; (4) whether Defendant had an opportunity to investigate; (5) whether Defendant would be substantially prejudiced; and (6) whether the claim appears to be meritorious. This list is not exhaustive and the presence or absence of any one factor is not dispositive. Rather, the Court in its discretion balances these factors in making its determination (Bay Terrace Coop. Section IV v New York State Employees' Retirement Sys. Policemen's and Firemen's Retirement Sys., 55 NY2d 979). However, it would be pointless to grant permission to file late if the proposed claim did not have at least the appearance of merit (see, e.g., Savino v State of New York, 199 AD2d 254; Prusack v State of New York, 117 AD2d 729).

When the claim involved is one for damages for the loss of personal property of an inmate confined in a State facility, the provisions of CCA § 10(9) are controlling. That section reads:
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 and twenty days after the date on which the inmate has exhausted such remedy.
As the submissions submitted since the interim decision and order clearly indicate that Claimant failed to exhaust his administrative remedies, § 10(9) of the CCA would preclude his recovery even if the motion were granted. Accordingly, Claimant has failed to demonstrate that his proposed claim has merit and his motion is therefore, denied.

September 9, 2002
Rochester, New York

Judge of the Court of Claims