Affirmation in Opposition (M-66234) 5
In his claim, claimant alleges that certain items of his personal property were
lost or misplaced, and not returned to him, when he was transferred from Marcy
Correctional Facility to Five Points Correctional Facility on April 16, 2002.
Claimant seeks total damages of $100.00.
As set forth in the affirmation submitted by defendant in support of its motion
to dismiss this claim (see Item No. 2), a notice of intention to file a claim
was received by the Attorney General on August 1, 2002. Subsequently, the
instant claim was received by the Attorney General's office on December 6, 2002.
Defendant asserts that both the notice of intention to file a claim and the
claim were improperly served on the Attorney General, and in addition, that the
claim was not timely served.
Section 10(9) of the Court of Claims Act sets forth the time limitations for
the service and filing of claims sounding in bailment brought by an inmate in
the custody of the Department of Correctional Services. This section requires
that such a claim be served and filed within 120 days after the inmate has
exhausted his or her administrative remedies.
As set forth in his claim, claimant indicates that he pursued his alleged loss
administratively by filing an institutional claim for the value of his lost
items on April 30, 2002; that this administrative claim was denied; and that the
denial was affirmed on appeal by the Superintendent's Designee on June 18, 2002.
Pursuant to § 10(9) of the Court of Claims Act, therefore, a claim was
required to be filed and served by October 16, 2002 (120 days from the date the
appeal was affirmed). Since it is undisputed that the claim was not served
until December 6, 2002, it is clearly
In addition to untimely service of the claim, defendant also asserts that both
the notice of intention to file a claim and the claim were served improperly, in
that they were served by regular mail and not by certified mail, return receipt
requested, as required by Court of Claims Act, § 11. Although defendant's
attorney asserts in his moving papers (see Item No. 2) that copies of the
envelopes in which these papers were served have been attached as exhibits to
defendant's moving papers, the Court has been unable to locate such exhibits in
the papers before it on this motion. However, in his accompanying motion
seeking leave to serve and file a late claim, claimant has not contested the
affirmation of defendant's attorney that the notice of intention and the claim
were both served by regular mail, and not by certified mail, return receipt
requested. Accordingly, this Court finds that the claim which was served on
December 6, 2002 was not served in accordance with the requirements of Court of
Claims Act, § 11(a).
The service and filing requirements of the Court of Claims Act are
jurisdictional prerequisites to the institution and maintenance of a claim
against the State and therefore they must be strictly construed (Finnerty v
New York State Thruway Authority, 75 NY2d 721; Byrne v State of New
York, 104 AD2d 782, lv denied 64 NY2d 607; Philippe v State of New
York, 248 AD2d 827). As a result, this Court does not have the authority to
cure or overlook defects in the time and manner of service and filing, and this
claim is therefore subject to dismissal.
Apparently realizing that his claim was not timely or properly served, claimant
instituted a motion seeking permission to serve and file a late claim, which
must now be considered by the Court.
With regard to this application, defendant contends that late claim relief is
not available to bailment claims brought by inmates. Specifically, defendant
argues that late claim relief, since it is specifically authorized and permitted
only under § 10(6) of the Court of Claims Act, does not extend to bailment
claims brought pursuant to § 10(9) of the Act.
Section 10(9) of the Court of Claims Act was enacted in 1999 (L 1999, ch 412,
pt D, § 2), and provides that any claim "for injury to or loss of personal
property" brought by "any inmate in the custody of the department of
correctional services" must be served and filed within 120 days after the date
on which administrative remedies have been exhausted by the inmate. Section
10(6), which was enacted by the Legislature prior to 1999, provides for the
possibility of late claim relief for those claims which have not been timely
served and/or filed in accordance with "foregoing subdivisions". Since §
10(9) is clearly not a foregoing provision in relation to § 10(6),
defendant argues that late claim relief is not available to claims asserted
under § 10(9).
This specific issue has previously been addressed by two of my esteemed and
learned colleagues on the Court of Claims, with conflicting results in separate
and well-reasoned decisions. In McCann v State of New York, 194 Misc 2d
340, the Court determined that the express language of § 10(6) precluded
late claim relief to applications asserting a cause of action under
§ 10(9). The Court reasoned that the Legislature had the option of
inserting the provisions of what would become § 10(9) either before or
after § 10(6). Since the Legislature specifically decided to place §
10(9) after § 10(6), the Court concluded that the Legislature had decided
to make late claim relief under § 10(6) unavailable for such claims, and
the Court should not negate this specific decision.
In reaching the opposite decision in Wright v State of New York
, Ct Cl,
March 26, 2003, Patti, J., Claim No. 104699, Motion No. M-65879 (UID No.
2003-013-010), the Court concluded that the "object, spirit and purpose of
Section 10(6)" would best be served by extending the provisions therein to
claims asserted under § 10(9). The Court reasoned that since late claim
relief under § 10(6) is available to other types of claims brought by
inmates, as well as to claims for property loss made by persons other than
inmates, there was "no logical or legitimate reason" for the Legislature to
abolish such a significant remedy for one specific type of claim brought by one
specific class of claimants
. This Court is
in agreement with the rationale supporting the decision made in Wright
and finds that late claim relief under § 10(6) is available to inmates for
lost property claims asserted under § 10(9) of the Court of Claims Act. As
a result, the Court must now consider whether such relief should be granted to
claimant in the instant application.
In order to determine an application for permission to serve and file a late
claim, the Court must consider, among other relevant factors, the six factors
set forth in § 10(6) of the Court of Claims Act. The factors set forth
therein are: (1) whether the delay in filing the claim was excusable; (2)
whether the State had notice of the essential facts constituting the claim; (3)
whether the State had an opportunity to investigate the circumstances underlying
the claim; (4) whether the claim appears meritorious; (5) whether substantial
prejudice resulted from the failure to timely file and the failure to serve upon
the Attorney General a timely claim or notice of intention to file a claim; and
(6) whether any other remedy is available. The Court is afforded considerable
discretion in determining whether to permit the late filing of a claim (see,
Matter of Gavigan v State of New York, 176 AD2d 1117).
With regard to excuse, claimant asserts that his failure to properly serve his
claim was due to the fact that he did not have sufficient funds in his account
to mail the claim by certified mail, return receipt requested. However, the
method of service is a jurisdictional prerequisite to the institution and
maintenance of a claim in this Court, and such jurisdictional requirements must
be strictly construed (Finnerty v New York State Thruway Authority, 75
NY2d 721, supra; Byrne v State of New York, 104 AD2d 782, lv
denied 64 NY2d 607 supra). Claimant also contends that he
erroneously believed that he had one full year to serve and file his claim, and
that he was not limited to the 120 day statutory period set forth in §
10(9). This excuse, however, amounts to ignorance of the law and does not
provide an acceptable excuse for delay (Matter of E.K. v State of New
York, 235 AD2d 540; Sevillia v State of New York, 91 AD2d 792).
The issues of notice, opportunity to investigate, and prejudice will be
considered together. Although § 10(9) neither requires nor authorizes the
service of a notice of intention to file a claim (as previously discussed
herein), the service of claimant's "Notice of Intent to File Claim" received by
the Attorney General on August 1, 2002, provided the State with notice and an
opportunity to investigate claimant's alleged loss. Defendant apparently
concedes that it received the requisite notice, that it had an opportunity to
investigate the underlying facts of this claim, and that it would suffer no
undue prejudice should claimant's application be granted.
The next factor, often deemed the most critical, is whether the proposed claim
has the appearance of merit. In order to establish a meritorious cause of
action, claimant has the burden to show 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 (Matter of Santana v New York State
Thruway Authority, 92 Misc 2d 1). The claim herein appears to present a
potentially viable cause of action for bailment.
It does not appear that claimant has any other available remedy.
The Court may in its discretion place as much or as little weight on any of the
six factors to be considered pursuant to the statute. Under the current law
"[n]othing in the statute makes the presence or absence of any one factor
determinative" (Bay Terrace Coop. Section IV v New York State Employees'
Retirement System Policemen's & Firemen's Retirement System, 55 NY2d
979) and none of the factors can require denial as a matter of law.
Therefore, even though Claim No. 107029 must be dismissed upon jurisdictional
grounds, the Court finds that late claim relief is available to inmate bailment
claims brought pursuant to § 10(9), and that in this particular claim,
claimant has made a sufficient showing for this Court to permit the service and
filing of a late claim.
Accordingly, it is
ORDERED, that Motion No. M-66227 is hereby GRANTED; and Claim No. 107029 is
hereby DISMISSED; and it is further
ORDERED, that Motion No. M-66234 is hereby GRANTED, and claimant is directed to
serve his claim upon the Attorney General and to file his claim with the Chief
Clerk of the Court of Claims within 45 days from the date of filing of this
decision and order in the Clerk's office, with such service and filing to be in
accordance with the Court of Claims Act, with particular reference to Sections
10, 11 and 11-a, and the Uniform Rules for the Court of Claims.